We've already written a few articles about the confirmation that AT&T is going above and beyond what's required by the law to be a "valued partner" of the NSA in helping with its surveillance campaign. While it's long been known that AT&T was giving fairly direct access to its backbone (thank you Mark Klein!), the latest released documents provide much more detail -- including that AT&T often does the initial "sifting" before forwarding content it finds to the NSA. To some NSA apologists, this is proof that the NSA isn't so bad, because it doesn't have full unencumbered access to everything, but rather is relying on AT&T to do the searching and then handing over what it finds. Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that the NSA does, in fact, have full access.
But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong.
First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others.
The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights. It seems that the NSA may have been trying to do just that. But it won't work.
Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.
When it comes to cozying up to the NSA, you'd be hard pressed to find a company that has been more cooperative with the agency's surveillance practices than AT&T. Long before Snowden, former AT&T whistle blower Mark Klein exposed (pdf) the fact that AT&T was effectively letting NSA have access to every shred of data that touches the AT&T network via live fiber splits. AT&T's involvement doesn't just stop at spying, information has indicated they have a history of giving the government advice on how to best bypass the law in addition to even acting as volunteer intelligence analysts when needed. Patriotism!
"AT&T's transparency report counts 301,816 total requests for information — spread between subpoenas, court orders and search warrants — in 2013. That includes between 2,000 and 4,000 under the category “national security demands,” which collectively gathered information on about 39,000 to 42,000 different accounts.
There was a time when that number would have seemed high. Today, it's suspiciously low, given the disclosures by whistleblower Edward Snowden about the NSA's bulk metadata program. We now know that the secretive Foreign Intelligence Surveillance Court is ordering the major telecoms to provide the NSA a firehose of metadata covering every phone call that crosses their networks.
An accurate transparency report should include a line indicating that AT&T has turned over information on each and every one of its more than 80 million-plus customers. It doesn't."
That's of course is because the new transparency guidelines (pdf) AT&T follows allow for total non-transparency in regards to disclosing metadata, using semantics to avoid disclosure:
"(EFF Attorney Nate) Cardozo believes that AT&T is correct that it is barred from disclosing the metadata numbers, because of the Obama administration's careful choice of language in the section relating to orders from the Foreign Intelligence Surveillance Court.
The guidelines allow for the disclosure, in chunks of 1,000, of “the number of customer selectors [phone numbers] targeted under FISA non-content orders.” Since the bulk metadata collection doesn't “target” any “selectors” it is, by definition, not subject to disclosure."
And while Wired remains focused on metadata (call times, IDs, call duration), they're failing to note that if what Klein said remains true (and people seem to forget Klein existed, for some reason), we're talking about not only metadata -- but real time data streams and voice monitoring that isn't being disclosed as well. As we noted with Verizon's transparency report, you're not being all that transparent when you're omitting bulk collection of surveillance data, and the data you do disclose operates in vague ranges designed to be intentionally misleading. So when we say transparency, we of course mean not transparent whatsoever.
As US politicians and pundits push each other aside to tar and feather Ed Snowden for revealing some basic facts about NSA surveillance that the politicians and pundits themselves refused to call out for its clear abuse of basic 4th Amendment principles, two of the most important previous leakers of details of NSA surveillance have spoken out in support of Snowden. Thomas Drake, the former NSA employee who blew the whistle on NSA surveillance abuse (and faced decades in jail on trumped up charges that fell apart in court), has pointed out that Snowden's revelations confirm his own claims from before:
The NSA programs that Snowden has revealed are nothing new: they date back to the days and weeks after 9/11. I had direct exposure to similar programs, such as Stellar Wind, in 2001. In the first week of October, I had an extraordinary conversation with NSA's lead attorney. When I pressed hard about the unconstitutionality of Stellar Wind, he said:
"The White House has approved the program; it's all legal. NSA is the executive agent."
It was made clear to me that the original intent of government was to gain access to all the information it could without regard for constitutional safeguards. "You don't understand," I was told. "We just need the data.
Drake also highlights how he did use the "official" whistleblower channels that many are saying Snowden should have used, and look what happened to him:
I differed as a whistleblower to Snowden only in this respect: in accordance with the Intelligence Community Whistleblower Protection Act, I took my concerns up within the chain of command, to the very highest levels at the NSA, and then to Congress and the Department of Defense. I understand why Snowden has taken his course of action, because he's been following this for years: he's seen what's happened to other whistleblowers like me.
By following protocol, you get flagged – just for raising issues. You're identified as someone they don't like, someone not to be trusted. I was exposed early on because I was a material witness for two 9/11 congressional investigations. In closed testimony, I told them everything I knew – about Stellar Wind, billions of dollars in fraud, waste and abuse, and the critical intelligence, which the NSA had but did not disclose to other agencies, preventing vital action against known threats. If that intelligence had been shared, it may very well have prevented 9/11.
But as I found out later, none of the material evidence I disclosed went into the official record. It became a state secret even to give information of this kind to the 9/11 investigation.
The end result was that his whistleblowing didn't do much, but he got arrested because he accidentally kept an almost entirely meaningless document about meeting participants in his home. And, when he was arrested, for just having the list of meeting attendees, he was smeared for causing "exceptionally grave damage to US national security."
Separately, former AT&T technician, Mark Klein, who revealed that he helped install NSA equipment directly within AT&T's network is speaking out about how Snowden, rather than the telcos, deserve retroactive immunity. The telcos broke the law and had to have Congress go back and retroactively make what they did -- which clearly broke the law at the time -- legal. Klein points out how his revelations were brushed off and ignored, while Snowden's revelations confirm a lot of what he said:
"It was clear that the NSA was looking at everything," Klein said. "It wasn't limited to foreign communications."
On Tuesday, Klein said that for a number of reasons, Snowden's disclosures sparked more public outrage than his own revelations did more than seven years ago.
For one thing, Klein said, Snowden had direct access to a secret court order and details of the program, while Klein pieced together the government's surveillance through internal AT&T documents and in discussions with colleagues who worked on the project.
"The government painted me as a nobody, a technician who was merely speculating," said Klein, who made his disclosures after he accepted a buyout and retired from AT&T in 2004. "Now we have an actual copy of a FISA court order. There it is in black and white. It's undisputable. They can't deny that."
Snowden's revelations just add to a pile of existing evidence. Look at what Drake, Klein and other whistleblowers have said over the past decade, and recognize that Snowden is just confirming the things that have already been stated by previous whistleblowers, but which the pundits and politicians tried to brush off as not happening.
