The top intelligence official in the United States condemned as “reprehensible” leaks revealing a secret program to collect information from leading Internet companies and said a separate disclosure about an effort to sweep up records of telephone calls threatens “irreversible harm” to the nation’s national security.
The comments by James R. Clapper, the director of national intelligence, late Thursday night about the newly revealed government surveillance programs came as President Obama was set to travel to Southern California on Friday for a two-day summit with President Xi Jinping of China. The revelations appeared certain to overshadow discussions between the two leaders.
Disclosure of the secret programs involving some of the nation’s biggest technology and communications firms — including Google, Apple and Verizon — also seemed likely to prompt a vigorous discussion among policy makers and Internet consumers about the expectations for privacy in an increasingly connected and online world.
Mr. Clapper said in a statement that the classified program to collect information from Internet providers is used to “protect our nation from a wide variety of threats” and he condemned the leaks of documents describing its existence.
“The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans,” Mr. Clapper said. In a separate statement, he warned about the negative impact from the leak of a secret court order authorizing the collection of phone records.
The release of the four-page order from the Foreign Intelligence Surveillance Act court “threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation,” Mr. Clapper said in the statement.
Mr. Clapper’s comments raise the specter of broad, new investigations into the leaks of secret and classified government documents at a time that Mr. Obama’s administration is already under fire in Washington for aggressively pursuing unauthorized leaks of information by monitoring the activities of journalists.
Questions began about how the documents — marked TOP “SECRET//SI//NOFORN” — emerged even as lawmakers, civil liberties activists, technology executives and members of the public reacted to the scope of the surveillance efforts.
In Washington, lawmakers, many of whom have been privately briefed on the secret surveillance efforts for years, sought to balance their public expressions of concern about the impact on privacy with the need to combat national security threats. Senator Angus King, independent of Maine, said Friday morning that there needed to be a discussion about that balance.
“People ought to have at least a general idea of what’s going on,” Mr. King said on MSNBC’s “Morning Joe” program. “It’s unfortunate that it has to come out in the form of leaks. The question is where’s the appropriate balance?”
He added: “It makes me nervous that all those phone records are in the possession of the national security agency.”
Jane Harman, a former Democratic representative from California, said on “Morning Joe” that lawmakers had been “briefed regularly” about the terrorist surveillance programs but acknowledged that “I think we ought to have a public debate” about the issues involved.
Dennis C. Blair, who served as President Obama’s first director of national intelligence, said Friday that there was little debate at the beginning of the Obama administration about whether to continue the National Security Agency’s telephone and Internet surveillance programs that began under President Bush.
“In 2006 and 2007, everything was put under a legal basis. That looked pretty good to us, so we continued it,” Mr. Blair said. He said that the agency’s relationships with Internet companies have been especially valuable, given the volume of global communications that are now done strictly in cyberspace.
“As the Internet has become the way people communicate, that’s the way we gather intelligence,” he said.
Speaking at a fund-raiser in Silicon Valley Thursday night, Mr. Obama did not mention the surveillance programs or the leaks of secret documents. In comments to tech executives at the home of Vinod Khosla, a co-founder of Sun Microsystems, the president focused on the need to have all schools connected to the Internet.
After a stop in San Jose this morning where he is scheduled to talk about the Affordable Care Act, Mr. Obama is scheduled to fly to Southern California to attend a fund-raiser and then visit with the Chinese president. The meetings had been expected to focus on issues of cybersecurity, with Mr. Obama pressing Mr. Xi on accusations of state-run hacking of American businesses and government installations.
But the leaks of the American surveillance programs appeared likely to provide Mr. Xi with a ready retort. The Chinese state-run Xinhua news agency’s English language Web site was playing the American data-collection story prominently on Friday morning.
“U.S. intelligence chief defends intelligence collection program,” the Chinese Web site said.
The disclosures also earned comedic reaction Thursday night from late-night talk show hosts. Conan O’Brien joked on his TBS show, "Conan," that in light of the government's phone records order, Verizon is "calling it the 'Friends and Family and Obama plan.'"
Jimmy Fallon, the host of NBC’s “Late Night” program, mocked Verizon’s ubiquitous “Can you hear me now?” ad campaign by saying — in a whisper — that the new ad strategy is: “They can hear you now!”
On Thursday afternoon,a classified program was revealed that in which the federal government has been secretly collecting information on foreigners overseas for nearly six years from the nation’s largest Internet companies like Google, Facebook and, most recently, Apple, in search of national security threats. The revelation, which was confirmed by the director of national intelligence, came just hours after government officials acknowledged a separate seven-year effort to sweep up records of telephone calls inside the United States.
Together, the unfolding revelations opened a window into the growth of government surveillance that began under the Bush administration after the terrorist attacks of Sept. 11, 2001, and has clearly been embraced and even expanded under the Obama administration.
Government officials defended the two surveillance initiatives as authorized under law, known to Congress and necessary to guard the country against terrorist threats. But an array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.
The Internet surveillance program collects data from online providers including e-mail, chat services, videos, photos, stored data, file transfers, video conferencing and logins, according to classified documents obtained and posted by The Washington Post and then The Guardian on Thursday afternoon.
In confirming its existence, officials said that the program, called Prism, is authorized under a foreign intelligence law that was recently renewed by Congress, and maintained that it minimizes the collection and retention of information “incidentally acquired” about Americans and permanent residents. Several of the Internet companies said they did not allow the government open-ended access to their servers but complied with specific lawful requests for information.
“It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States,” Mr. Clapper, the director of national intelligence, said in a statement, describing the law underlying the program. “Information collected under this program is among the most important and valuable intelligence information we collect, and is used to protect our nation from a wide variety of threats.”
The Prism program grew out of the National Security Agency’s desire several years ago to begin addressing the agency’s need to keep up with the explosive growth of social media, according to people familiar with the matter.
The dual revelations, in rapid succession, also suggested that someone with access to high-level intelligence secrets had decided to unveil them in the midst of furor over leak investigations. Both were reported by The Guardian, while The Post, relying upon the same presentation, almost simultaneously reported the Internet company tapping. The Post said a disenchanted intelligence official provided it with the documents to expose government overreach.
Before the disclosure of the Internet company surveillance program on Thursday, the White House and Congressional leaders defended the phone program, saying it was legal and necessary to protect national security.
Josh Earnest, a White House spokesman, told reporters aboard Air Force One that the kind of surveillance at issue “has been a critical tool in protecting the nation from terror threats as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.” He added: “The president welcomes a discussion of the trade-offs between security and civil liberties.”
The Guardian and The Post posted several slides from the 41-page presentation about the Internet program, listing the companies involved — which included Yahoo, Microsoft, Paltalk, AOL, Skype and YouTube — and the dates they joined the program, as well as listing the types of information collected under the program.
But while the administration and lawmakers who supported the telephone records program emphasized that all three branches of government had signed off on it, Anthony Romero of the American Civil Liberties Union denounced the surveillance as an infringement of fundamental individual liberties, no matter how many parts of the government approved of it.
“A pox on all the three houses of government,” Mr. Romero said. “On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.”
Others raised concerns about whether the telephone program was effective.
Word of the program emerged when The Guardian posted an April order from the secret foreign intelligence court directing a subsidiary of Verizon Communications to give the N.S.A. “on an ongoing daily basis” until July logs of communications “between the United States and abroad” or “wholly within the United States, including local telephone calls.”
On Thursday, Senators Dianne Feinstein of California and Saxby Chambliss of Georgia, the top Democrat and top Republican on the Intelligence Committee, said the court order appeared to be a routine reauthorization as part of a broader program that lawmakers have long known about and supported.
“As far as I know, this is an exact three-month renewal of what has been the case for the past seven years,” Ms. Feinstein said, adding that it was carried out by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act.”
“Therefore, it is lawful,” she said. “It has been briefed to Congress.”
While refusing to confirm or to directly comment on the reported court order, Verizon, in an internal e-mail to employees, defended its release of calling information to the N.S.A. Randy Milch, an executive vice president and general counsel, wrote that “the law authorizes the federal courts to order a company to provide information in certain circumstances, and if Verizon were to receive such an order, we would be required to comply.”
Sprint and AT&T have also received demands for data from national security officials, according to people familiar with the requests. Those companies as well as T-Mobile and CenturyLink declined to say Thursday whether they were or had been under a similar court order.
Lawmakers and administration officials who support the phone program defended it in part by noting that it was only for “metadata” — like logs of calls sent and received — and did not involve listening in on people’s conversations.
The Internet company program appeared to involve eavesdropping on the contents of communications of foreigners. The senior administration official said its legal basis was the so-called FISA Amendments Act, a 2008 law that allows the government to obtain an order from a national security court to conduct blanket surveillance of foreigners abroad without individualized warrants even if the interception takes place on American soil.
The law, which Congress reauthorized in late 2012, is controversial in part because Americans’ e-mails and phone calls can be swept into the database without an individualized court order when they communicate with people overseas. While the newspapers portrayed the classified documents as indicating that the N.S.A. obtained direct access to the companies’ servers, several of the companies — including Google, Facebook, Microsoft and Apple — denied that the government could do so. Instead, the companies have negotiated with the government technical means to provide specific data in response to court orders, according to people briefed on the arrangements.
“Google cares deeply about the security of our users’ data,” the company said in a statement. “We disclose user data to government in accordance with the law and we review all such requests carefully. From time to time, people allege that we have created a government ‘backdoor’ into our systems, but Google does not have a ‘backdoor’ for the government to access private user data.”
While murky questions remained about the Internet company program, the confirmation of the calling log program solved a mystery that has puzzled national security legal policy observers in Washington for years: why a handful of Democrats on the Senate Intelligence Committee were raising cryptic alarms about Section 215 of the Patriot Act, the law Congress enacted after the 9/11 attacks.
Section 215 made it easier for the government to obtain a secret order for business records, so long as they were deemed relevant to a national security investigation.
Section 215 is among the sections of the Patriot Act that have periodically come up for renewal. Since around 2009, a handful of Democratic senators briefed on the program — including Ron Wyden of Oregon — have sought to tighten that standard to require a specific nexus to terrorism before someone’s records could be obtained, while warning that the statute was being interpreted in an alarming way that they could not detail because it was classified.
***
Secrets and Leaks
Por Bill Keller [The New York Times, 3/6/13]
CONGRESSMAN Ted Poe and I are not what you’d call kindred spirits. He’s a shrink-the-government-then-drown-it-in-the-bathtub Texas Republican, a global warming denier, an N.R.A. 100-percenter, a devout foe of abortion rights. He comes from a political tribe that regards the mainstream media as a hive of Bolsheviks. Yet Poe and I see eye to eye on one thing. He is the main House sponsor of a bill intended to protect journalists from being compelled to give up information about their government sources, even when the sources have divulged matters of national security.
For Poe and quite a few like-minded conservatives, a law to shield confidential sources is not about pampering the press. It is about maintaining a check on a big government that has been known to abuse its powers.
“We cannot allow our government to arbitrarily abolish the First Amendment in the name of ‘state secrets,’ ” Poe said last month, responding to the Justice Department’s fishing expedition into the phone records of The Associated Press.
Thanks in part to the outrage over two aggressive government leak hunts — the A.P. case and the electronic tracking of a Fox News correspondent — there is now a flicker of hope that Poe’s bill will become law. President Obama, as part of his professed intention of softening the security state he inherited and enhanced, has revived the idea of a federal shield law. Scandals at the Internal Revenue Service and a few other federal agencies have reminded everyone of the need for a probing press. And that Fox News case has given the conservative wing of our national press a more personal stake in the matter. (The Fox anchor Megyn Kelly sounds like Daniel Ellsberg these days.)
A federal shield law has been a goal of news organizations for decades. Such legislation has passed the House twice with large bipartisan majorities, and in 2009 a version won the approval of the Senate Judiciary Committee — only to stall after the hemorrhage of classified documents from the anti-secrecy group WikiLeaks.
A lot of people I respect, including some eminent journalists, have questioned the idea that Congress should exempt reporters from the civic duty to give evidence. Anthony Lewis, the Times correspondent, columnist and self-taught legal scholar who died this year, worried six years ago that giving reporters an inviolable right to protect sources might make it hard for someone who had been ruined by false allegations to find his accuser and get justice. Walter Pincus, the veteran Washington Post investigator who has himself been a target of leak-hunting subpoenas, argues that a shield law would make the press too beholden to Congress and subject to a worrisome degree of government regulation. He insists that the right to protect sources already exists in law. (The Supreme Court, in its 1972 ruling in Branzburg v. Hayes, failed to find such a right in the Constitution, but a few federal judges have found it in common law. The fact that every state in the country except Wyoming offers a measure of protection for confidential sources has persuaded some judges that this is society’s will, even if Congress has not yet said so.)
Pincus and other critics complain that a sanctimonious press is quick to wrap itself in the First Amendment but often slow to acknowledge that some secrets are worth keeping. A closer look at the two cases currently fueling media indignation suggests they have a point.
In the first case, The Associated Press disclosed last year that the C.I.A. had thwarted a terrorist plot to blow up an airliner. The initial scoop uncorked a gusher of sensitive details as other news organizations raced to advance the story and the Obama administration tried to supply some self-serving context. So we now know this: A C.I.A.-Saudi-British operation planted a mole inside the Qaeda affiliate in Yemen. The agent volunteered to blow up an airliner using a new bomb designed to get past airport security. Instead, he turned over the device to his handlers.
At the C.I.A.’s request, The A.P. held its story for several days — apparently so the agency could use information from the infiltrator to locate and kill a top Qaeda official — and then the story spilled into many headlines. It’s hard to imagine the mole, having failed to blow up an airliner, was ever going to be welcomed back into the bosom of Al Qaeda. But the administration argues that the disclosure of his role at least put the terrorists on high alert and made future infiltration more difficult. In its hunt for the leakers, the F.B.I. secretly studied two-months’ worth of calls on phones used by 100 A.P. reporters.
In the second case, James Rosen of Fox News reported in 2009 that, according to the C.I.A.’s sources in Pyongyang, North Korea was contemplating another nuclear test. Not earthshaking news, but the feds feared this story would tip off North Korean leaders that we have the ability to intercept their conversations. So they seized Rosen’s e-mail records and traced the movements of his electronic State Department visitor’s badge to zero in on his source. The government kept this surveillance a secret on the grounds that Rosen was “an aider, abettor and/or co-conspirator” in violation of the Espionage Act. Rosen was not indicted, but the language revealed an ominous mind-set.
I think the Justice Department had ample reason to find these particular leaks troubling. At the very least, both put enemies on guard. In neither case was the leak hunt launched to silence a whistle-blower or hide official malfeasance; on the contrary, both leaks revealed intelligence agencies doing their jobs. And in pursuing the leakers, the Justice Department was doing its.
The question is whether the leaks justified such an extensive invasion of journalists’ activities, with no advance notice and no independent oversight. That is exactly the kind of dispute a shield law is meant to resolve. Before compelling a journalist to testify or surrender records, the government would be obliged to meet the journalist’s lawyers in front of a judge. The prosecutors would have to make a good case that they had no other way to find the leak, that they would not cast their net so widely as to intrude on other reporting operations, and that identifying the leak was more important than the public value of the story. It’s not clear whether a shield law would have thwarted the government’s surveillance of The A.P. or Rosen. But it would have taken away the prosecutors’ power to decide unilaterally.
“Judges are not always wise,” Anthony Lewis wrote in 2007, endorsing the kind of compromise contained in Poe’s measure. “But in our system they are the ones we trust to weigh acutely conflicting interests.”
Sadly, the current Senate version of the shield law, which has been laboriously massaged to accommodate both media companies and secrecy hawks, has an intolerably large loophole for cases in which the government claims national security is at risk. That would leave the government with a free hand not only in the A.P. and Rosen cases, but in genuinely notorious revelations such as warrantless eavesdropping, secret prisons and torture, which would not have been disclosed without confidential sources.
To be sure, nothing Congress is likely to pass will satisfy First Amendment absolutists. Some judges will side with the government reflexively. We may occasionally see a principled journalist going to jail rather than obey a court order to divulge a source.
But I would settle for a law like Poe’s that at least requires government secrecy to be weighed against our need to know what the government is up to and that puts that judgment in the hands of someone other than our chief prosecutor. Even an imperfect shield law would restore a little balance in the perpetual struggle between necessary secrets and democratic accountability.
***
Washington Post Began PRISM Story Three Weeks Ago, Heard Guardian's 'Footsteps'
Por Michael Calderone [The Huffington Post, 7/6/13]
The Washington Post revealed on Thursday the existence of a secret National Security Agency program code-named PRISM, which reportedly allows the U.S. government to tap directly into the servers of several major Internet companies, including Microsoft, Yahoo, AOL and Google.
The blockbuster story, which included PowerPoint slides provided by a “career intelligence official,” landed online at 5:43 p.m. and led the front page Friday morning.
But roughly 20 minutes after the Post story appeared online Thursday, The Guardian –- which had already broken a major story the previous night on the NSA’s seizure of millions of Verizon customers’ phone records –- published its own story on PRISM, complete with PowerPoint slides. The Guardian's Glenn Greenwald, who broke the Verizon story, shared a byline on the PRISM story with Washington bureau chief Ewen MacAskill.
That two news outlets would publish stories on a secret government program so close together is striking, and the timing suggests there was a race to get the news up first. Indeed, Barton Gellman, who co-wrote the Post’s story, told The Huffington Post that he “started to hear some footsteps, so I had to move.”
Gellman has won two Pulitzer Prizes with the Post, but readers haven’t seen his byline on the front page in some time. He left the paper in 2010 for Time magazine, where he continues to write on a non-exclusive basis. But for the PRISM story, Gellman returned to his old stomping grounds.
Three weeks ago, Gellman and Laura Poitras — a filmmaker who has chronicled security in the post-9/11 world, and whom Gellman knew from a previous fellowship at NYU — approached Post editors with the PRISM story. Gellman described his co-author as having done "really tough, ballsy, documentary film work” on surveillance issues in the past.
Gellman, who is currently a senior fellow at The Century Foundation, said he chose to write the piece for the Post because it “felt more like a newspaper story than a magazine story” and because of his experience reporting major national security stories there in years past. “It calls for a whole battalion of support,” Gellman said of the staff needed for this type of story.
He met first with Post managing editor Kevin Merida, with whom he had worked previously, and later with executive editor Marty Baron, other top editors, reporters and lawyers.
Gellman said it was as much of a "journalistic, legal, source management and national security knot as I've ever come across."
Still, Gellman tried to keep a low profile at the Post in recent weeks, given that rumors would have inevitably spread that he might be rejoining the paper. Instead of reporting from the 5th floor newsroom, Gellman worked two floors up near the paper's legal staff.
Recently, it became clear to Gellman that the scoop might be broken elsewhere and so the Post “decided to push it through." Gellman said he “would have been happier to have had a day or two” more to work on the PRISM story, but it was clear, for competitive reasons, the Post had to move quickly. (A Post spokeswoman did not provide anyone to speak with The Huffington Post for this story).
"The Guardian was working toward a 6pm deadline in order to allow the technology companies referenced in the training document to respond to our request for comment as we believed it was an important element of the story," a Guardian News & Media spokeswoman told The Huffington Post when asked about Thursday's publication.
"As soon as the story was ready, we published," she said, adding that "the Prism story is part of a narrative the Guardian has published along with the Verizon story."
Indeed, the Guardian led the way with its Verizon story and has doggedly covered the still-unfolding story of government surveillance in the Obama years.
Gellman and Poitras noted in their piece that their source for the PowerPoint slides leaked them "to expose what he believes to be a gross intrusion on privacy." The career officer said the government "quite literally can watch your ideas form as you type."
Gellman would not respond to questions about whether he suspects the Post and Guardian had the same source for the slides.
Broadly speaking, Gellman said that he and Poitras “couldn’t have even started to get the story if the source” wasn’t comfortable that they were taking precautions in protecting him.
“The source is at considerable risk and was only wiling to communicate in the most secure way and knew what he was doing on that,” Gellman said.
The Huffington Post is owned by AOL, which has denied knowledge of the PRISM program.