You can't have 100% security, 100% privacy and 0% inconvenience, insists President Obama.

Thomas Claburn, Editor at Large, Enterprise Mobility

June 7, 2013

7 Min Read

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In defense of classified government surveillance programs that were revealed in the past week, President Obama on Friday offered reassurance that U.S.intelligence efforts are lawful, echoing a statement published the day before by James R. Clapper, Director of National Intelligence.

"When it comes to telephone calls, nobody is listening to your telephone calls," President Obama said during a press conference at the Fairmont Hotel in San Jose, Calif. "As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people's names, and they're not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism."

Clapper said as much in a statement issued on Thursday. "The program does not allow the Government to listen in on anyone's phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the Court's order is telephony metadata, such as telephone numbers dialed and length of calls."

[ For an IT chief's take on NSA Prism's impact, see NSA Dragnet Debacle: What It Means To IT. ]

No eavesdropping allegation was made, however. The Guardian on Wednesday reported on the existence of a secret court order that requires Verizon to provide the NSA with all records of phone calls on its network on an ongoing basis. The records represent metadata: phone numbers involved in a call, the call time and duration, and location data, for example, but not the words that were said during the call.

In any event, the scope of the U.S. government's surveillance activities go beyond metadata. The Guardian and The Washington Post on Thursday revealed the existence of a surveillance program called PRISM, which reportedly provides the NSA and FBI with the ability to siphon data directly from the servers of major Internet companies such as Apple, Facebook, Google, Microsoft and Yahoo.

According to The Wall Street Journal, the NSA has been getting data from AT&T and Sprint, as well as credit card companies and Internet companies.

PRISM, according to The Guardian, gathers data as well as metadata: search history, emails, file transfers and chats.

President Obama acknowledged the collection of online content from Internet companies by noting, "Now, with respect to the Internet and emails — this does not apply to U.S. citizens and it does not apply to people living in the United States."

Nonetheless, Internet communications involving U.S. citizens may be caught in the dragnet: Clapper said that PRISM included procedures that "minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons."

President Obama noted that the two surveillance programs have been "authorized by broad bipartisan majorities repeatedly since 2006." Documents posted on suggest that PRISM has been active since at least 2003. And The Wall Street Journal says that intelligence officials trace such broad intelligence gathering back to the Sept. 11, 2001, terrorist attacks.

In an emailed statement, Google insisted it doesn't provide the government with access to user data. "Google cares deeply about the security of our users' data," a company spokesman said in an email. "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."

Google reiterated and elaborated on this point in a blog post attributed to CEO Larry Page and chief legal officer David Drummond on Friday. "Press reports that suggest that Google is providing open-ended access to our users’ data are false, period," Page and Drummond state. "Until this week's reports, we had never heard of the broad type of order that Verizon received — an order that appears to have required them to hand over millions of users’ call records. We were very surprised to learn that such broad orders exist. Any suggestion that Google is disclosing information about our users' Internet activity on such a scale is completely false."

Clapper claims that the surveillance program revealed by The Guardian and The Washington Post is lawful under Section 702 of the Foreign Intelligence Surveillance Act and that the government's activities conform with established oversight requirements. Section 215 of the Patriot Act also appears to be implicated in the government's ability to justify such surveillance.

Taking Google's statement at face value and assuming the press characterization of PRISM is accurate — and late Friday there appeared to be reason to doubt some of the initial claims — Google could be simply providing the NSA with access to data as required by law. A June 7 New York Times story indicates as much. There's also the possibility that the NSA could be obtaining Google customer data without Google's knowledge. Evidence of that, however, has yet to be demonstrated.

Google's Transparency Report includes data on government information requests related to criminal investigations. But the company provides only limited disclosure about government information requests under national security laws, specifically the receipt of National Security Letters. In other words, Google's Transparency Report isn't entirely transparent.

Google however clearly wants to reassure users that it isn't just rolling over. "I'm not sure what the details of this PRISM program are, but I can tell you that the only way in which Google reveals information about users are when we receive lawful, specific orders about individuals -- things like search warrants," said Google+ chief architect Yonatan Zunger in a post. President Obama's assertion that "nobody is listening to your telephone calls" suggests that the U.S. government's mining of telephony metadata is nothing to worry about.

But Susan Freiwald, professor of law at University of San Francisco School of Law, said in a phone interview that metadata has significant privacy implications. "It's really not true that the content of our communication holds more revealing information than the metadata," she said.

In a phone interview, Jon Callas, CTO of secure communications service Silent Circle, agreed that metadata can be very revealing. "It's one of the reasons that privacy advocates have been concerned about seizure of phones and looking at call logs," he said.

In a 1996 a paper about metadata, or "communication attributes," Freiwald warned, "As it now stands, disclosure of communication attribute information presents an extremely intrusive view into people's private lives. Unfortunately, the law does little to prevent it."

Today, in 2013, metadata tells even more about us, thanks to the addition of location information, supplied by mobile phones, to say nothing about records of our online activities. Simply put, metadata can lead to criminal charges. It is thus relevant in the context of legal protections guaranteed under the U.S. Constitution.

Freiwald argues that the secrecy surrounding these surveillance programs runs contrary to what we expect from an accountable democracy. She points to the judges who oversee these programs, who are selected by the Chief Justice and who can't be contacted. They're not what we think of as a judiciary, she said.

"The criticism I've always had of surveillance programs is when they operate with the insufficient involvement of other branches, we have to rely on executive branch restraint," she said. "..These programs give too much power the the executive branch to operate in secret. The answer keeps coming back, 'don't worry, trust us.' We don't know enough and we need to know more. We need to move as much as we can of this decision making into the light."

Callas observed that when a similar program, Echelon, was revealed many years ago, there was a presumption that U.S. citizens were not the target of information gathering. He said if information about Americans is being gathered by current surveillance programs, he hopes to see some reconsideration of the laws.

Callas believes that one result of the renewed awareness of government surveillance may be that some organizations and individuals will reconsider doing business with online companies that fail to support SSL connections and take steps to secure customer data.

Callas also observes encrypted communication services have some advantages in the current environment, because they can't reveal data that has been properly encrypted. "If someone came to us with a National Security Letter, we'd hand over the zero records we have," he said.

About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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