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

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 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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Comments about Keeping Up with the Snoops 2: The 4th Amendment Strikes Back
(Comments are closed.)

f.dahlgren  2014-01-07 08:10
I would urge all the apologists for Mr. Snowden to think twice about the enormous damage that he has done to this countrys' foreign relations and, yes, national security. If Mr. Snowden wanted to reveal NSA snooping on US citzens he could have easily done so without stealing and revealing thousands of classified files harmful to US interests and running to China and Russia. He is at best a thief and a self serving egotist and at worst a traitor to his country. Amnesty? Really?
When did TidBITS begin producing advocacy journalism? I can read reports of a criminal who violated his multiple oaths merely to boost his ego in any of dozens of mainstream media outlets. I read Tidbits for what has (until now) been "Thoughtful, detailed coverage of the Mac, iPhone, and iPad..." Stick to what you've proven you're good at and leave the opinion pieces to others.
Adam Engst  An apple icon for a TidBITS Staffer 2014-01-07 10:07
TidBITS covers what we feel is important to cover, and always has. And we have always offered our opinion when we felt it was relevant to share.

But I don't see this as advocacy journalism, regardless. We're rounding up the major news stories surrounding the topic because we feel it's important that people remain abreast of what's happening and continue to discuss what's being learned. We aren't doing original reporting here, but are instead attempting summaries for those who aren't obsessively reading other publications.

Regardless of your or our opinions of Snowden's actions, the cat is out of the bag, and learning that, for instance, the NSA has tapped Google and Yahoo datacenter links and developed malware that can defeat iPhone security safeguards is absolutely fodder for conversation. At the very least, if the NSA can do it, does that mean that other countries can, or that organized crime (the major source of malware in the world) can as well?
Josh Centers  An apple icon for a TidBITS Staffer 2014-01-07 10:27
I would add that Snowden didn't indiscriminately dump everything he had, as many other leakers have done. He handed documents over to experienced journalists, who have carefully vetted and filtered the material.

I'm sure he could have, if he wished, leaked the NSA's methodologies, which would have been far more damaging.

That being said, even if you think that Snowden is a traitor and the NSA is 100% in the right, you *should* be angry at the NSA for a security breach of this magnitude. They appear to be collecting and storing everyone's personal information. What would happen if all that were to leak? I'm not convinced that the NSA is responsible enough to securely maintain all of this information.
These articles go beyond summarizing existing reporting. Phrases such as "It’s disturbing enough that the NSA is monitoring games played (at least in part) by children", "Things were starting to look up for privacy advocates" and "perhaps the celebrations were too soon" indicate a clear bias.

To the first point, that NSA allegedly collected intelligence in WoW or Second Life...why has this made headlines? Why shouldn't intelligence agencies collect intel, within legal parameters, in domains that potentially useful information resides? If a police force upped foot patrols in a park that they believed was being used to plan nefarious activity would that be front page news? I doubt it. But the image of an intelligence officer getting paid to play a game is humorous and/or disturbing and it gets play.

Revealing sources and methods renders those sources useless. Most communications dry up and those that do remain are immediately suspect. His actions have rendered numerous sources useless
Adam Engst  An apple icon for a TidBITS Staffer 2014-01-07 14:32
As I said, yes, we have opinions, and we share them - we always have, and we always will. But the actions that we're advocating is that people remain aware of what's going on, keep discussing what activities are and are not appropriate in our society, and make those opinions known to elected representatives. We're not telling you what to think, and if encouraging participation in our democratic system is advocacy journalism, so be it.
John B  2014-01-07 14:56
Yes, it's quite clear at the onset that Josh Centers is adjusting the pejorative. That's fine, for an op-ed column as it is. Informative? Meh. Preaching to the choir? An attempt. All within the First Amendment. It is what it is.
artMonster  2014-01-07 15:08
I think this is more akin to police randomly peering into our windows, listening with their ear at the door. I think Stockholm syndrome comes into play with some defenders of this behavior. Maybe they feel more secure siding with total government surveillance. I certainly do not. In any event, shining a light on this is democracy in action.
Norbert E Fuchs  An apple icon for a TidBITS Benefactor 2014-01-09 08:03
I would like to take this opportunity to thank Josh Centers – and also Adam Engst – for keeping us informed about the latest developments of the "NSA affair". Please continue to do so.
Josh Centers  An apple icon for a TidBITS Staffer 2014-01-09 10:42
Thanks Norbert!
I agree with the anonymous poster above. TidBITS is usually fair, impartial and objective. This piece is factual, but very clearly not impartial. That's OK, but perhaps that differentiation should be acknowledged somehow.
Adam Engst  An apple icon for a TidBITS Staffer 2014-01-09 10:35
I guess this is what happens when you try to write very carefully! :-) We often share our opinions in articles. We've never aimed for objectivity as an abstract goal, preferring instead to be subjective but fair and accurate. I don't believe there are any errors in what's written here.

(Personally, I think true objectivity is nearly impossible, with what passes for objectivity most of the time actually being a conscious effort to disguise the subjective opinions underneath.)
Josh Centers  An apple icon for a TidBITS Staffer 2014-01-09 11:09
Actually, pick any random TidBITS article, and it's almost never impartial — we freely offer our opinions in just about every piece, even brief link posts.

I do like to think that we're fair, though. I don't like forming opinions about things without examining the other side's viewpoint, and I've certainly done that in my NSA research. The fact is, I haven't heard many convincing arguments in the NSA's favor, beyond vague warnings about terrorism. Their programs appear to be ineffective, unconstitutional, and potentially dangerous. This isn't just my view, but that of Judge Leon, the president's own review board, many leaders in the tech sector, and the editorial board of the New York Times — which has often been pro-government in the past.

There's a long-standing trend in journalism, one that was enforced in my schooling, of presenting both sides of an argument equally, in the name of "objectivity." I find this approach to be lazy and disingenuous. My job as a journalist isn't merely to parrot what I'm told, but to analyze the facts and present the truth.

There's another trend in journalism, a dangerous one, where reporters will parrot the government's position, as you can see in that 60 Minutes piece. Journalists are supposed to be an additional check on government power, not a megaphone.

Not to sound so high and mighty, most of what I do here is talk about apps, gizmos, and video games, but I always try to approach even those trivialities with that same journalistic standard. And every opinion I share is backed up by facts and evidence. Even if we disagree, you're presented with the tools to form your own opinions — which I encourage every reader to do.
Matthew Peak  2014-01-10 00:15
Adam & Josh: I agree with this poster as well. I found this article to be unusual. I've followed Tidbits for awhile and this is the first article that actually prompted me to want to respond, not because of the content, but because of an expected/suggested point of view directed to the reader; this didn't sit well for me. Tidbits has not been a source of controversial material in the past so I hope this isn't a new editorial direction.

Josh, you shouldn't be so defensive. I agree with your analysis of revealed facts re: NSA. But I do not believe that everything that appears in the media (especially via leakers) are also facts. The NSA is not necessarily evil. And we shouldn't discount how they might be protecting us because we don't know everything they do. And why should we assume that they will be more effective when everyone knows everything about their secrets?

My first post and I spent a lot of time working on it. Tidbits rocks. Matt out...
f.dahlgren  2014-01-20 15:55
I studied journalism briefly before I decided engineering was a better choice for me. Back then they were still teaching the pyramid style of reporting which included the 4 Ws, Who, What, Where, When. The 5th W, Why, was strictly confined to the editorial page. There was no attempt or need to present both sides of an argument because all you did was report facts. Unfortunately, the "new journalism" being taught and practiced today has abandoned this discipline in favor of providing context or interpretation of events ostensibly to convey a more complete story than mere reporting of factual events could. The danger in this approach to reporting is it introduces an ambiguity as to what background is relevant and what is not, and often can lead to biased reporting based on what a reporter feels is necessary to establish a "true" context (more often than not based on his or her preconceived opinions or prejudices). Analysis of facts filtered though a reporters perspective is editorializing
Adam Engst  An apple icon for a TidBITS Staffer 2014-01-10 07:07
Thanks for the considered comments, Matt. I can assure you, with the history of nearly 24 years of publication behind me, that this is not a new direction or approach. We do not often dip into worlds outside of those obviously related to Apple technologies, but it does happen when we feel it's important, and in this particular case, it impacts Apple users as much as anyone else.

For instance, the revelation that any organization was able to create malware such as DROPOUTJEEP that would provide complete access to an iPhone is important for those evaluating the security of the iPhone, Apple included. Would we view such an activity with anything but opprobrium if it had been discovered without connection to the NSA? I think not.

And as far as the overall importance of the topic, I think the Executive Summary of the presidential panel's report, as published by the White House, is worth reading (heck, I think the full 308 pages of the report is worth reading too, but I doubt most people will do that). Why? Because it lays out the basic tension between security and liberty - it is the NSA's job to help protect this country from national security threats. But at the same time, it is the job of the media and the people to hold government agencies such as the NSA to the standard we the people feel is required. Lincoln's powerful phrase — "government of the people, by the people, for the people" — encapsulates the entire issue. It is our duty to discuss, to evaluation, to question, not just to blindly rubberstamp the hitherto unknown activities of a government organization acting in our name.


LIBERTY AND SECURITY IN A CHANGING WORLD: Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies

Executive Summary

The national security threats facing the United States and our allies are numerous and significant, and they will remain so well into the future. These threats include international terrorism, the proliferation of weapons of mass destruction, and cyber espionage and warfare. A robust foreign intelligence collection capability is essential if we are to protect ourselves against such threats. Because our adversaries operate through the use of complex communications technologies, the National Security Agency, with its impressive capabilities and talented officers, is indispensable to keeping our country and our allies safe and secure.

At the same time, the United States is deeply committed to the protection of privacy and civil liberties—fundamental values that can be and at times have been eroded by excessive intelligence collection. After careful consideration, we recommend a number of changes to our intelligence collection activities that will protect these values without undermining what we need to do to keep our nation safe.
Naomi Pearce  2014-01-22 12:01
My response to the article was Big Gratitude for the synopsis. If absolute power corrupts absolutely, and if information is power, then collecting and storing all the information provides a hugely increased potential for corruption. It's an important thing to watch and discuss in a democracy. I really appreciated the short version. Thank you!