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Keeping Up with the Snoops 2: The 4th Amendment Strikes Back

by Josh Centers

The revelations from former NSA contractor Edward Snowden keep snowballing so quickly that my last roundup (“Keeping up with the Snoops,” 10 December 2013) seemed obsolete within hours after it was published. But as the NSA drama hits the courts, keeping up with the latest is more important than ever.

Following my last roundup, 60 Minutes aired a piece on the NSA. In reality, it was little more than a puff piece by a reporter who wasn’t a 60 Minutes regular, but instead a former Associate Deputy Director of National Intelligence who has since been hired as a Deputy Commissioner of the New York City Police Department. The reporter, John Miller, even said in the story that “General Alexander [head of the NSA] agreed to talk to us because he believes the NSA has not told its story well.”

Over the course of the show, Miller failed to challenge the NSA’s story — that it was the victim of the villainous Edward Snowden, who permanently damaged the NSA’s ability to protect freedom-loving Americans from terrorism. Needless to say, the 60 Minutes piece was eviscerated in the press, including The New York Times and The Verge.

It turns out that the NSA needed all the public relations help it could get. The next day, U.S. District Court Judge Richard Leon found that the NSA’s warrantless data collection programs are likely unconstitutional. Leon, an appointee of former president George W. Bush — whose administration is credited with the current state of NSA affairs — went so far as to call the programs “almost Orwellian,” adding that James Madison, architect of the U.S. Constitution, would be “aghast.”

The next day, President Obama invited tech leaders, including Apple’s Tim Cook, Google’s Eric Schmidt, and Yahoo’s Marissa Mayer to the White House to discuss the Healthcare.gov Web site, but what the president got instead was an earful. “That is not going to happen,” one executive reportedly said in response to a call to focus the meeting on healthcare, “We are here to talk about the NSA.” At one point, Zynga founder Marc Pincus reportedly called for a pardon of Edward Snowden, something President Obama claims he can’t do. (Since pardons are a constitutionally enumerated presidential power, is it can’t or won’t?)

The week grew even rougher for the Obama administration and the NSA when a presidential panel dedicated to investigating the NSA revelations, stacked with former intelligence officials, recommended sweeping restrictions to the programs. A New York Times op-ed suggests that President Obama seems to be dragging his feet on implementing his own panel’s recommendations.

Things were starting to look up for privacy advocates, and Edward Snowden temporarily came out of hiding in Russia to deliver a video Christmas message, saying, “A child born today will grow up with no conception of privacy at all. They’ll never know what it means to have a private moment.”

But perhaps the celebrations were too soon. Two days after Christmas, federal Judge William Pauley ruled NSA mass data collection of phone records to be constitutional.

Even with that setback, pressure continues to mount on the government, with the New York Times Op-Ed page now calling for amnesty for Snowden. “Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight,” the editorial board said.

Meanwhile, as the battle over Snowden and his revelations continues to ramp up, there’s no closing the lid on his Pandora’s box. Security researcher Jacob Applebaum worked with German magazine Der Spiegel to expose the NSA’s Tailored Access Operations (TAO) unit, which is composed of young hackers. Of TAO’s many capabilities, it has tapped into the error-reporting feature of Microsoft Windows to gain remote access to PCs.

Applebaum also revealed another NSA program of particular interest to iPhone users: DROPOUTJEEP, a form of malware that reportedly has a 100 percent success rate against the iPhone. Fortunately, it appears that DROPOUTJEEP requires physical access to the iPhone, and Apple has denied working with the NSA to enable backdoors in its software.

As the revelations continue to snowball, things took a turn toward science fiction, with the NSA apparently racing European powers to develop a quantum computer that could theoretically break all existing encryption.

As the NSA drama unfolds in the courts and in Congress, the only thing we as citizens can do is to get the word out and keep the conversation going. Which is what Vermont Senator Bernie Sanders has done — by bluntly asking the NSA if it’s spying on Congress. The response was interesting, with the NSA refusing to deny spying on Congress, saying, “Members of Congress have the same privacy protections as all U.S. persons.” The NSA spying on Congress wouldn’t be a surprise, as previous security whistleblower Russ Tice has claimed that the NSA was spying on then-senatorial candidate Barack Obama all the way back in 2004.

The response to Sanders’s letter could have a huge effect on the bipartisan USA Freedom Act, which could curtail NSA mass data collection. Sad as it is, Congress might be the best avenue to address NSA abuses, as the FISA court, overseen by Supreme Court Chief Justice John Roberts, has since reauthorized the NSA’s phone metadata collection programs, despite their questionable constitutionality. On the other side of the equation, security expert Richard Clarke, who has served in multiple administrations and who was a member of the presidential panel recommending sweeping restrictions, told Brooke Gladstone of “On the Media” that the FISA court was doing a good job.

Until our next update then, stay private out there.


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