Last post, we wrote about the NSA‟s secret program to obtain and then analyze the telephone metadata relating to foreign espionage and terrorism by obtaining the telephone metadata relating to everyone. In this post, we will discuss a darker, but somewhat less troubling program called PRISM. As described in public media as leaked PowerPoint slides, PRISM and its progeny is a program to permit the NSA, with approval of the super-secret Foreign Intelligence Surveillance Court (FISC) to obtain “direct access” to the servers of internet companies (e.g., AOL, Google, Microsoft, Skype, and Dropbox) to search for information related to foreign terrorism – or more accurately, terrorism and espionage by “non US persons.”
Whether you believe that PRISM is a wonderful program narrowly designed to protect Americans from terrorist attacks or a massive government conspiracy to gather intimate information to thwart Americans political views, or even a conspiracy to run a false-flag operation to start a space war against alien invaders, what the program actually is, and how it is regulated, depends on how the program operates. When Sir Isaac Newton published his work Opticks in 1704, he described how a PRISM could be used to – well, shed some light on the nature of electromagnetic radiation. Whether you believe that the Booz Allen leaker was a hero, or whether you believe that he should be given the full Theon Greyjoy for treason, there is little doubt that he has sparked a necessary conversation about the nature of privacy and data mining. President Obama is right when he says that, to achieve the proper balance we need to have a conversation. To have a conversation, we have to have some knowledge of the programs we are discussing.
Unlike the telephony metadata, the PRISM programs involve a different character of information, obtained in a potentially different manner. As reported, the PRISM programs involve not only metadata (header, source, location, destination, etc.) but also content information (e-mails, chats, messages, stored files, photographs, videos, audio recordings, and even interception of voice and video Skype calls.)
Courts (including the FISA Court) treat content information differently from “header”information. For example, when the government investigated the ricin-laced letters sent to President Obama and NYC Mayor Michael Bloomberg, they reportedly used the U.S. Postal Service‟s Mail Isolation Control and Tracking (MICT) system which photographs the outside of every letter or parcel sent through the mails – metadata. When Congress passed the Communications Assistance to Law Enforcement Act (CALEA), which among other things established procedures for law enforcement agencies to get access to both “traffic” (non-content) and content information, the FBI took the posistion that it could, without a wiretap order, engage in what it called “Post-cut-through dialed digit extraction” -- that is, when you call your bank and it prompts you to enter your bank account number and password, the FBI wanted to “extract” that information (Office of Information Retrival) as “traffic” not “content.” So the lines between “content” and “non-content”may be blurry. Moreover, with enough context, we can infer content. As Justice Sotomeyor observed in the 2012 GPS privacy case:
… it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742, 99 S.Ct. 2577; United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.
But the PRISM program is clearly designed to focus on content. Thus, parts of the Supreme Court‟s holding in Smith v. Maryland that people have no expectation of privacy in the numbers called, etc. therefore does not apply to the PRISM-type information. Right?
Again, not so fast.
Simple question. Do you have a reasonable expectation of privacy in the contents of your e-mail?
Short answer: Yes.
Longer answer: No.
Better answer: Vis a vis whom, and for what purposes. You see, privacy is not black and white. It is multispectral – you know, like light through a triangular piece of glass.
When the government was conducting a criminal investigation of the manufacturer of Enzyte (smiling Bob and his gigantic – um – putter) they subpoenaed his e-mails from, among others, Yahoo! The key word here is subpoena – not search warrant. Now that‟s the thing about data and databases -- if information exists it can be subpoenaed. In fact, a Florida man has now demanded production of cell location data from – you guessed it – the NSA.
But content information is different from other information. And cloud information is different. The telephone records are the records of the phone company about how you used their service. The contents of emails and documents stored in the cloud are your records of which the provider has incidental custody. It would be like the government subpoenaing your landlord for the contents of your apartment (they could, of course subpoena you for this, but then you would know), or subpoenaing the U-stor-it for the contents of your storage locker (sparking a real storage war). They could, with probable cause and a warrant, seach the locker (if you have a warrant, I guess you‟re cooing to come in), but a subpoena to a third party is dicey.
So the Enzyte guy had his records subpoenaed. This was done pursuant to the stored communications act which permits it. The government argued that they didn‟t need a search warrant to read Enzyte guy‟s email, because – you guessed it – he had no expectation of privacy in the contents of his mail. Hell, he stored it unencrypted with a thjird party. Remember Smith v. Maryland? The phone company case? You trust a third party with your records, you risk exposure. Or as Senator Blutarsky (I. NH?) might opine, “you ()*^#)( up, you trusted us…”(actually Otter said that, with apologies to Animal House fans.)
Besides, cloud provider contracts, and email and internet provider privacy policies frequently limit privacy rights of users. In the Enzyte case, the government argued that terms of service that permitted scanning of the contents of email for viruses or spam (or in the case of Gmail or others, embedding context based ads) meant that the user of the email service “consented” to have his or her mail read, and therefore had no privacy rights in the content. (“Yahoo! reserves the right in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service.”) Terms of service which provided that the ISP would respond to lawful subpoenas made them a “joint custodian” of your email and other records (like your roommate) who could consent to the production of your communications or files. Those policies that your employer has that says, “employees have no expectation of privacy in their emails or files"? While you thought that meant that your boss (and the IT guy) can read your emails, the FBI or NSA may take the position that “no expectation of privacy” means exactly that.
Fortunately, most courts don’t go so far. In general, courts have held that the contents of communications and information stored privately online (not on publicly accessible Facebook or Twitter feeds) are entitled to legal protection even if they are in the hands of potentially untrustworthy third parties. But this is by no means assured.
But clearly the data in the PRISM case is more sensitive and entitled to a greater level of legal protection than that in the telephony metadata case. That doesn‟t mean that the government, with a court order, can't search or obtain it. It means that companies like Google and Facebook probably can't just “give it” to the government. I''s not their data.
So the NSA wants to have access to information in a massive database. They may want to read the contents of an email, a file stored on Dropbox, whatever. They may want to track a credit card through the credit card clearing process, or a banking transaction through the interbank funds transfer network. They may want to track travel records – planes, trains or automobiles. All of this information is contained in massive databases or storage facilities held by third parties – usually commercial entities. Banks. VISA/MasterCard. Airlines. Google.
The information can be tremendously useful. The NSA may have lawful authority (a Court order) to obtain it. But there is a practical problem. How does the NSA quickly and efficiently seek and obtain this information from a variety of sources without tipping those sources off about the individual searches it is conducting – information which itself is classified? That appears to be the problem attempted to be solved by PRISM programs.
In the telephony program, the NSA “solved” the problem by simply taking custody of the database.
In PRISM, they apparently did not. And that is a good thing. The databases remain the custody of those who created them.
Here‟s where it gets dicey – factually.
The reports about PRISM indicate that the NSA had “direct access” to the servers of all of these Internet companies. Reports have been circulating that the NSA had similar “direct access” to financial and credit card databases as well. The Internet companies have all issued emphatic denials. So what gives?
Speculation time. The NSA and Internet companies could be outright lying. David Drummond, Google‟s Chief Legal Officer aint going to jail for this. Second, they could be reinterpreting the term “direct” access. When General Alexander testified under oath that the NSA did not “collect any type of data on millions of Americans” he took the term “collect” to mean “read” rather than “obtain.”
Most likely, however, is that the NSA PRISM program is a protocol for the NSA, with FISC approval, to task the computers at these Internet companies to perform a search. This tasking is most likely indirect. How it works is, at this point, rank speculation. What is likely is that an NSA analyst, say in Honolulu, wants to get the communications (postings, YouTube videos, stored communications, whatever) of Abu Nazir, a non-US person, which are stored on a server in the U.S., or stored on a server in the Cloud operated by a US company. The analyst gets “approval” for the “search,” by which I mean that a flock of lawyers from the NSA, FBI and DOJ descend (what is the plural of lawyers? [ a "plague"? --spaf] ) and review the request to ensure that it asks for info about a non US person, that it meets the other FISA requirements, that there is minimization, etc. Then the request is transmitted to the FISC for a warrant. Maybe. Or maybe the FISC has approved the searches in bulk (raising the Writ of Assistance issue we described in the previous post.) We don‟t know. But assuming that the FISC approves the “search,” the request has to be transmitted to, say Google, for their lawyers to review, and then the data transmitted back to the NSA. To the analyst in Honolulu, it may look like “direct access.” I type in a search, and voilia! Results show up on the screen. It is this process that appears to be within the purview of PRISM. It may be a protocol for effectuating court-approved access to information in a database, not direct access to the database.
Or maybe not. Maybe it is a direct pipe into the servers, which the NSA can task, and for which the NSA can simply suck out the entire database and perform their own data analytics. Doubtful, but who knows? That‟s the problem with rank speculation. Aliens, anyone?
But are basing this analysis on what we believe is reasonable to assume.
So, is it legal? Situation murky. Ask again later.
If the FISC approves the search, with a warrant, within the scope of the NSA‟s authority, on a non-US person, with minimization, then it is legal in the U.S., while probably violating the hell out of most EU and other data privacy laws. But that is the nature of the FISA law and the USA PATRIOT Act which amended it. Like the PowerPoint slides said, most internet traffic travels through the U.S., which means we have the ability (and under USA PATRIOT, the authority) to search it.
While the PRISM programs are targeted at much more sensitive content information, if conducted as described above, they actually present fewer domestic legal issues than the telephony metadata case. If they are a dragnet, or if the NSA is actually conducting data mining on these databases to identify potential targets, then there is a bigger issue.
The government has indicated that they may release an unclassified version of at least one FISC opinion related to this subject. That‟s a good thing. Other redacted legal opinions should also be released so we can have the debate President Obama has called for. And let some light pass through this PRISM.
† Mark Rasch, is the former head of the United States Department of Justice Computer Crime Unit, where he helped develop the department’s guidelines for computer crimes related to investigations, forensics and evidence gathering. Mr. Rasch is currently a principal with Rasch Technology and Cyberlaw and specializes in computer security and privacy.
‡ Sophia Hannah has a BS degree in Physics with a minor in Computer Science and has worked in scientific research, information technology, and as a computer programmer. She currently manages projects with Rasch Technology and Cyberlaw and researches a variety of topics in cyberlaw.
Rasch Cyberlaw (301) 547-6925 www.raschcyber.com