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6/7/2013
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NSA PRISM Creates Stir, But Appears Legal

Massive information-sharing program involves Google, Facebook and other technology heavyweights, top secret document details. But NSA looks to have acted inside the law.

Has the National Security Agency been illegally spying on Americans?

The Guardian newspaper in Britain Thursday published a top-secret document, dated April 2013, outlining an information-sharing program -- code-named PRISM -- that counts seven of the country's biggest technology giants as participants, including Apple, Facebook and Google.

Run by the NSA, the program reportedly provides the agency with access to real-time information as well as stored data from the businesses' systems. According to a chart included in the NSA document, the agency has direct access to servers, and is able to access email, voice and video chat, videos, photos, stored data, VoIP, file transfers, video conference, login activity, social network details as well as "special requests." The current providers of such data are listed as Microsoft, Google, Yahoo, Facebook, PalTalk, YouTube, Skype, AOL and Apple. But the document said that the program is continuing to expand, naming Dropbox as an upcoming provider of data.

Those revelations came in the wake of a report released earlier this week that detailed a secret U.S. court order that compelled Verizon to share all of its customers' call records, as well as details relating to subscribers' emails, Web searches and credit card activity. Similar programs count AT&T and Sprint as information providers, The Wall Street Journal reported Friday.

[ Where is the balance between security and civil liberties? See Boston Bombers Can't Elude City's Tech Infrastructure. ]

Responding to the outing of the PRISM program, James R. Clapper, the U.S. director of National Intelligence, issued a statement "on recent unauthorized disclosures of classified information" Thursday, saying that "the article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties."

Clapper continued, "I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use." To that end, he said that he'd directed that some information relating to the "business records" accessed be the program "be declassified and immediately released to the public."

Friday, the Guardian reported that the NSA's British equivalent, known as the Government Communications Headquarters (GCHQ), has enjoyed access to PRISM since 2010, and last year generated 197 intelligence reports using the program.

PRISM began in 2007. The first participant was Microsoft, followed by Yahoo (2008); Google, Facebook and PalTalk (2009); YouTube (2010); Skype and AOL (2011); and Apple (2012), reported the Guardian.

In response to questions about their PRISM participation, all of the technology companies named in the PRISM document issued curiously similar statements that largely included legal and technical hedges, saying they complied with court orders, but never gave the government "direct access" or a "back door" into their systems.

A statement issued by Google reads, "Google cares deeply about the security of our users' data. 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 'back door' into our systems, but Google does not have a 'back door' for the government to access private user data."

While some businesses, including Apple, said they'd never heard of PRISM, none of the businesses denied being part of such a program. Then again, they may be subject to a gag order.

"My read on PRISM: named [companies] provide an API to specific content and 'target activity' under FISA. Think of it as push notification for NSA," tweeted security researcher Ashkan Soltani. "This isn't 'direct access' nor is it a 'backdoor' which is why the talking points are all similar. It's a targeted API."

But is PRISM legal? The short answer appears to be -- no matter how unpalatable a massive domestic Internet surveillance program might sound -- yes.

"From what I've seen so far, it sounds like the program is the way the government is implementing the FISA Amendments Act of 2008 and the Protect America Act of 2007, which were enacted in response to the 2005 disclosure of the Bush Administration's warrantless wiretapping program," said George Washington University professor Orin Kerr, a former Department of Justice computer crime prosecutor, in a blog post.

Even so, the scale of the domestic surveillance programs, launched by President George W. Bush and reauthorized by President Barack Obama, has drawn criticism from a number of civil rights and privacy groups. "Many lawmakers, like Senators Wyden and Udall, warned that the Executive Branch's interpretations of the Patriot Act and the FISA Amendments Act were dangerously broad," said Center for Democracy and Technology (CDT) senior counsel Greg Nojeim, in a statement. "Now we know just how right they were, and just how badly Congress needs to reform those laws."

Based on the leaked PRISM materials, however, the takeaway from the program doesn't appear to differ significantly from previously used law enforcement data-gathering techniques. "There's less difference between this 'collection-first' program and the usual law enforcement data search than first meets the eye," said attorney Stewart A. Baker, who served as NSA general counsel from 1992 to 1994. "In the standard law enforcement search, the government establishes the relevance of its inquiry and is then allowed to collect the data. In the new collection-first model, the government collects the data and then must establish the relevance of each inquiry before it's allowed to conduct a search."

"If you trust the government to follow the rules, both models end up in much the same place," Baker said.

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JoeBlowZCUI
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JoeBlowZCUI,
User Rank: Apprentice
6/7/2013 | 3:45:46 PM
re: NSA PRISM Creates Stir, But Appears Legal
Legality is, to a large extent, irrelevant.
.
This is a level of government surveillance unseen in the history of humanity. A vast majority of the cell phone-using population of the United States are monitored. A vast majority of the the earth's internet users are being monitored.
.
To be melodramatic to make a point: this is the kind of thing that would justify burning down Congress. Americans should be in the streets. And every globally concerned citizen should be writing to their government representatives, imploring them to complain to the Americans for this highly immoral and secretive global surveillance.
.
I believe this behavior should be considered a crime against humanity. It is a violation of basic human decency, and is obscene. Many heads should roll.
ANON1238069211759
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ANON1238069211759,
User Rank: Apprentice
6/7/2013 | 5:11:22 PM
re: NSA PRISM Creates Stir, But Appears Legal
It is only "legal" because the people who created the secrect laws, courts and warrents say they are legal. Of course everything is labled top secrect so no one can look at them anyways. It is only "legal" because no one has or can stopped them.

No one will be tried, no one will be convicted because they were all following the "law". Only the Supreme court can say it is illegal and they can only do that once someone has been tried and convicted using these nefarious methods.

This is not a Republican vs Democrat issue. This is an American vs the Government issue. An Us vs Them issue. This affects us all. When the FBI, NSA and IRS can arrogantly target individual Americans, we are right back to King Gerorge III.
Lorna Garey
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Lorna Garey,
User Rank: Ninja
6/7/2013 | 5:25:14 PM
re: NSA PRISM Creates Stir, But Appears Legal
Many of the media outlets yelling about this are the same ones asking why the FBI didn't stop the Tsarnaev brothers before the Boston bombings. The phrase "damned if you do, damned if you don't" comes to mind. A discussion is needed over how much monitoring Americans will accept in return for disruption of terrorist plots.
Jed Davis
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Jed Davis,
User Rank: Apprentice
6/7/2013 | 5:35:39 PM
re: NSA PRISM Creates Stir, But Appears Legal
Here's my vote. Probable cause. Anything else is a direct goose step toward totalitarianism.
muttal
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muttal,
User Rank: Apprentice
6/7/2013 | 6:25:59 PM
re: NSA PRISM Creates Stir, But Appears Legal
In addition to Jed's response to Lorna's comment, the fact is that the Tsarnaev brothers were NOT stopped despite this Big Brother snooping. Sometimes, people have a false sense of security, particularly if they think they will not be targets. The fact is, these programs are run by human beings with the same limitations as any other human beings. The false sense of security will be quickly upended when you become the target for some idiotic reason and, by then, it will be too late...
Lorna Garey
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Lorna Garey,
User Rank: Ninja
6/7/2013 | 7:08:40 PM
re: NSA PRISM Creates Stir, But Appears Legal
While "goose stepping toward totalitarianism" is a bit histrionic, I never said I think the government is in the right. It's a pretty clear infringement on the 4th amendment, IMO. That said, for the sake of argument, what if the NSA proved that the program did stop four or five other plots like the Boston bombing by using data analysis to connect dots and show the FBI where to look?
moarsauce123
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moarsauce123,
User Rank: Apprentice
6/8/2013 | 4:08:29 PM
re: NSA PRISM Creates Stir, But Appears Legal
Did all this massive surveillance do anything? And how is it necessary to collect records on millions who have done nothing wrong and are not on the path of doing so? This is like burning down an entire house to kill one fly.
Jed Davis
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Jed Davis,
User Rank: Apprentice
6/7/2013 | 5:33:02 PM
re: NSA PRISM Creates Stir, But Appears Legal
"If you trust the government to follow the rules, both models end up in much the same place," Baker said. Yep, IF......
humberger972
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humberger972,
User Rank: Apprentice
6/7/2013 | 5:36:03 PM
re: NSA PRISM Creates Stir, But Appears Legal
It is legal for congress to take bribes now -- because they changed the law. It is now illegal to report illegal activites in food processing sites now - because the industry paid alot of money to congress and wrote the law - ie whistle blowing that benefits the pubic is now illegal. Several industries have put in laws that name them or their industry directly to make them excempt from laws the rest of us follow, all perfectly "legal". If they pass a law that it is ok for the goverment to hold US citizens without trail forever, and make it illegal to talk about it or challange it in court. Then it is perfectly legal -- but it is still wrong.
zunguri
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zunguri,
User Rank: Apprentice
6/7/2013 | 5:41:50 PM
re: NSA PRISM Creates Stir, But Appears Legal
This is what the Patriot Act has brought us.
moarsauce123
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moarsauce123,
User Rank: Apprentice
6/8/2013 | 4:06:35 PM
re: NSA PRISM Creates Stir, But Appears Legal
This is exactly what the Patriot Acts were intended to do!
zerses
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zerses,
User Rank: Apprentice
6/10/2013 | 12:57:42 AM
re: NSA PRISM Creates Stir, But Appears Legal
Not according to its authors.
DataEquity
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DataEquity,
User Rank: Apprentice
6/7/2013 | 8:05:23 PM
re: NSA PRISM Creates Stir, But Appears Legal
and we've already seen how easily these agencies can be hacked
moarsauce123
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moarsauce123,
User Rank: Apprentice
6/8/2013 | 12:07:09 PM
re: NSA PRISM Creates Stir, But Appears Legal
Legal yes, that is the sad part about it.
Somedude8
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Somedude8,
User Rank: Apprentice
6/8/2013 | 3:36:41 PM
re: NSA PRISM Creates Stir, But Appears Legal
Oh geez, the tinfoil hat crowd is gonna go nuts with this one.
zerses
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zerses,
User Rank: Apprentice
6/10/2013 | 12:56:58 AM
re: NSA PRISM Creates Stir, But Appears Legal
I say it is not legal.

The law is specific and this DRAGNET is NOT SPECIFIC.
gavgavgav
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gavgavgav,
User Rank: Apprentice
6/10/2013 | 4:44:01 PM
re: NSA PRISM Creates Stir, But Appears Legal
I agree entirely with the other commenters that legality is completely irrelevant when the laws themselves are overreaching. In the US it should be judged by its constitutionality, while in the rest of the world it should be condemned in the harshest language.

The 4th amendment to the US Constitution states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Sometimes the definition of the word "search" is called into question, but there is plenty of precedent for that. The so-called Katz Standard defines a search in this context as occurring when:

1) a person expects privacy in the thing being searched [as I do in my phone, email and other non-public data exchanges]
2) society believes that expectation is reasonable [which is evident by the public outcry].

So how can PRISM and the phone record surveillance programs be constitutional?

Additionally the whole affair drastically weakens the USA's right to condemn other nations regarding privacy, intellectual property theft, human rights and related issues. How does the US now speak to China about the PLA's unit 61398? But then, how does the US combat international computer crime while (reportedly)working with Israel to develop and distribute Stuxnet and related malware into other nations? Can the States decry human rights abuses in Myanmar while failing to close Guantanamo? I know I'm not comparing apples to apples in these examples, but each one weakens America's right to be an international role model and demonstrates a deeply worrying trend away from its very own constitutionality.

Now is the time for the American public and the larger International community to read the documents of the US Founding Fathers (they're not long), understand their intent and get vocal about changing things for the better!
Gavin, CISSP, SSCP, CEH
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