Top Headline Comments 6-12-13

Happy Wednesday.

The contours of at least one of the NSA programs has gotten a lot clearer. The cell phone metadata warrants were issued pursuant to USA PATRIOT Act sec. 215, also known as the "business records provision" or, for civil libertarians during Bush 43's years, the "library records provision." The cell metadata program has been confirmed to the public -- that is, we've seen an authentic court order with respect to Verizon and been reliably informed that the other major cell carriers have also been subject to those orders, and for many years.

And though the cell metadata collection goes back to the Bush Administration, the use of section 215 has been greatly expanded by the Obama government.

The ACLU, a Verizon customer, is suing to shut down the cell metadata collection and to force NSA to destroy all records that it has obtained under the cell metadata program. ACLU complains (PDF) that the program violates section 215, as well as the First and Fourth Amendments.

Unlike the cell metadata program, however, the details of PRISM continue to be disputed. Edward Snowden remains the sole source to claim that the program allows NSA to "directly and unilaterally seize" internet communications off the companies' servers and that the program is directed against Americans. Those allegations have been denied by both DNI Clapper and by each of the companies allegedly involved. They've also been denied by undisclosed sources to the papers, although we've gotta weigh the fact that they won't allow their names to be used.

As far as on-the-record deinals go, both Clapper (PDF) and the companies have indicated that PRISM is the way that these companies comply with court orders to provide the content of internet communications in international terrorism cases under FISA sec. 702,

NYTimes reported that one of the ways the companies were approached by NSA to operate PRISM was by means of a digital "lock box" or "clean room" on the companies' servers. The companies, upon receiving a court order, would deposit the requested communications in the secure lock box, which NSA could then access remotely.

Yesterday, Google outright rejected the lock box possibility, at least with respect to itself, and admitted that it complies with 702 orders by means of a simple secure FTP. Google -- later joined by Facebook and Microsoft -- also asked DOJ to give it permission to publicly discuss how it complies with FISA orders, so as to clear its name of the charge that it provided NSA with "unilateral" access to the content on its servers.

In short, we have one confirmed case of NSA indiscriminately targeting Americans over the course of many years -- the cell metadata story. We have another sensational, and unconfirmed (to put it mildly) allegation that NSA is taking data right off the servers of the biggest internet companies. The second story is alarming, but too vague and uncorroborated for me to simply take Ed Snowden's word for it.

posted by Gabriel Malor at 06:52 AM

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