Google To NSA Over Surveillance: See You In Court

The NSA surveillance scandal doesn’t appear to be ending any time soon. Now, if Google has its way, what data the government has been asking for could simply be, well, a Google search away.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

If one were to describe the NSA spying scandal as “eventful”, that would be an incredible understatement. Every day, there’s more developments including the rather interesting story that Google is petitioning the court to reveal what records the NSA wanted the company to disclose to the government. Google argues that it’s merely a first amendment issue.

The story comes from CNN which includes the following:

In a First Amendment plea lodged with the secretive U.S. Foreign Intelligence Surveillance Court, Google asked that the court let it disclose the scope of the newly discovered “Prism” program. Google also asked for the ability to share the number of user accounts associated with those secret data requests. The company argued that a gag order barring such disclosure is a violation of its right to free speech.


Google claims that those and other reports about Prism were “misleading” and “mischaracterized the scope” of the program — specifically, that they misled the public to believe that the government has carte blanche to snoop on its users. The company has publicly denied that the government has the ability to tap directly into its servers, and Google says it wants to clear the record about the scope of such requests.

“Google’s reputation and business has been harmed by the false or misleading reports in the media, and Google’s users are concerned by the allegations,” the company said in its filing. “Google must respond to such claims with more than generalities.”

While companies are have been denying that the government has direct access to their servers and that the government has been obtaining contents of communications, evidence seems to contradict some of these denials. Earlier, we pointed to the story where the NSA admitted behind closed doors that they can, in fact, tap phone conversations without a warrant. The government has denied this report that corroborated with Edward Snowden’s accusations that were backed up by the presentation slides he leaked to the public through the Washington Post and The Guardian.

Government officials have also been trying to say just about anything to defend the program. Dick Cheney said that the program would have prevented the 9/11 attacks had it been put in place earlier and that citizens have nothing to fear about widespread surveillance.

The claim appears to be a recycled one. In April of 2008, there was the infamous Mukasey’s “Missed Phone Call” controversy where an Attorney General claimed that the widening of surveillance was necessary because one missed phone call led to the 9/11 attacks. The claim was basically that a call from a known terrorist safe house in Afghanistan was made to someone in the United States and, because of civil rights protections, the NSA couldn’t investigate. The Electronic Frontier Foundation investigated and thoroughly debunked the claims concluding:

Hayden also noted that, under the rules implementing EO 12333, “no information, to, from, or about a U.S. person may be retained unless the information is necessary to understand a particular piece of foreign intelligence or assess its importance.” This would have prevented the NSA from retaining the information acquired if that information had no intelligence value. However, the call described by Mukasey, he asserts, would have prevented 9/11. Certainly, EO 12333 would not have prevented the NSA from retaining such as call.

Accordingly, it does not appear that either FISA or Executive Order 12333 would have prevented the government from conducting surveillance on the call described by Mukasey. Instead, the example shows that the law was sufficient, and any failure lay in the hands of the Executive Branch.

The takeaway from that was that known existing infrastructure and known laws back in 2008 would not have prevented the NSA from tapping the call in question. Judging by the report from Cheney, there is reason to believe that Cheney’s comments refer to the same call Mukasey was talking about in 2008, however, there is enough vagueness in the comments so there’s plausible deniability. Still, it’s interesting that excuses made in 2008 are being recycled today in 2013 – and for all we know, could be just as credible as the previous attempts to use this as an excuse for mass surveillance of the American population.

Another claim was that the program thwarted plots points out, quickly unravelled:

And, now it’s come out that the “threat” to the stock exchange never really existed. The people involved did explore the idea, but gave it up on their own well before doing any serious planning, and, of course, the charges against them had nothing to do with that. In other words, while these guys may have supported terrorism, they didn’t have any actual plot to bomb the stock exchange, there was no risk, no lives were saved, and they were not convicted of any such plot. So, no, the programs didn’t save any lives here either.

Meanwhile, the leaks on the NSA program keep happening. The Guardian leaked the secret rules that allow the NSA to spy on Americans without a warrant:

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

The procedures cover only part of the NSA’s surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.


The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans’ call or email information without warrants.

The documents also show that discretion as to who is actually targeted under the NSA’s foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors — though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

While the Guardian is revealing this information, the government has decided to charge the original leaker, Snowden, with espionage. From WWL:

The Justice Department has charged former National Security Agency contractor Edward Snowden with espionage and theft of government property in the NSA surveillance case.


A one-page criminal complaint unsealed Friday in federal court in Alexandria, Va., says Snowden engaged in unauthorized communication of national defense information and willful communication of classified communications intelligence information. Both are charges under the Espionage Act. Snowden also is charged with theft of government property. All three crimes carry a maximum 10-year prison penalty.

Of course, Snowden already commented on this matter saying that he would never get a fair trial:

In a question-and-answer session with readers on the website of Britain’s Guardian newspaper, Snowden said his disappointment with President Barack Obama helped spur his decision to reveal the monitoring of Americans’ phone and Internet data kept by big companies such as Google Inc and Facebook Inc.

Snowden, who had been working at an NSA facility as an employee of contractor Booz Allen Hamilton, traveled to Hong Kong before the surveillance programs became public and has vowed to stay there and fight any effort to bring him back to the United States.

“The U.S. government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal and even unconstitutional acts is an unforgivable crime. That’s not justice,” he told the online forum.

Currently, there is no word on whether or not Hong Kong would agree to extradite Snowden.

I think all of this reflects a clashing of narratives by the US government. The government has the narrative that this program is not a big deal and citizens should blissfully go about their lives because the government is protecting their best interest. If that’s the case, then the leaks should be treated as such – that they’re no big deal. The government, though, also continues the narrative that these leaks are damaging, dangerous and does all these horrible things. In that case, then should these programs the leaks exposed be of concern to the American people? It’s like a circular argument. In addition, if the spying program is as great and wonderful as the government says it is, why is absolutely every element of this program supposed to be secret? Why the need to hide something so great and wonderful? Meanwhile, evidence continues to pour out that the government doing something rather distasteful in all of this. This whole thing has really become a case of government claims vs. evidence.

Drew Wilson on Twitter: @icecube85 and Google+.

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