Holder’s documents answer a lingering question: “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person.” Thus, the U.S. government acknowledges it has alternative means of verifying whether an individual is an American citizen residing within the United States before targeting begins and, within the confines of the documents themselves, incriminates itself further: “[I]n order to prevent the inadvertent targeting of a United States person, NSA maintains records of telephone numbers and electronic communications account/address/identifiers that NSA has reason to believe are being used by United States persons.” The intelligence agency admits to keeping files on Americans. Its paradoxical justification is it needs these records to determine who can and cannot be surveilled. It is not disclosed how these records are obtained. The implication is that they consist of “inadvertently” intercepted data and information culled from “U.S.-based machines” used to aid in location verification. It is assumed this data is under a one-year retention license or a five-year extension.
In theory, “domestic” designates any communication that involves a U.S. citizen or takes place on American soil. The disclosures broadly define the term as well as harbor numerous exemptions to supposedly hard-and-fast rules of surveillance.
The decision to extract information begins and ends with the analyst. In the unlikely event an audit questions a retrieval or “task” request, clemency is granted so long as it can be argued there was “reasonable belief” the appeal fell under any of Holder’s provisions. In order to allow the “widest allowable aperture” for targeting, the directives do not place the burden of proof upon an analyst. Even with the aid of NSA databases and access to external files and records, if an analyst cannot arrive at a conclusive answer, shadow of a doubt is not granted. The attorney general’s orders explicitly instruct the analyst to assume a person is abroad and non-American when no definitive location data is available: “A person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.” All international communications are granted free license for surveillance: “Information indicates that the telephone number [and in a subsequent clause, ‘electronic communications account/address/identifier’] has been used to communicate directly with another telephone number [etc.] reasonably believed by the U.S. Intelligence Community to be used by an individual associated with a foreign power or foreign territory.” This also allows for targeting of anyone with foreign associations via electronic “buddy lists,” such as Facebook. In any situation where an American is communicating with a foreigner, the data can be intercepted.
If American Bob is on vacation in France and emails American Mary, they may be surveilled. If Bob is in San Francisco and Mary is in New York their conversation can be recorded if an analyst isn’t able to determine where Bob’s telephone is transmitting from or easily locate Mary’s naturalization papers. Also, if Bob is believed to be associated with a foreign political group after posting on a socialist Internet forum based in Venezuela, has a foreign telephone account or utilizes a non-domestic email service, he may become a suspect. Anyone who has electronically “friended” a non-American can be made a target. It is clear that under this policy, reverse targeting can occur. If a person of potential interest does not elicit lawful targeting, all an analyst needs to do is look at the web of associations and find one foreign contact at a distance of two or fewer hops to substantiate an investigation upon the otherwise legally-protected individual. Once the American’s identity is removed, collected data can be disseminated to other agencies or “friendly governments.” After Bob and Mary’s names are removed from their emailed love letter, the NSA can hand it over to the CIA, FBI or GCHQ with no questions asked.
Once a person is verified to be within the United States, all targeting is to cease, with the exception of bulk data collection. The NSA is permitted to retain non- and American information using this method based upon the premise that the intelligence agency is unable to filter the two types of communication. If the NSA dragnets American “backbone” hubs, this would permit almost all American communications to be collected with impunity. Contrary to Clapper’s claims, if it is later revealed during “post-target analysis” that a subject was within the U.S. during transmission or interception, the accrued information is granted grandfather amnesty and retained for review. All of this directly contradicts Obama and the intelligence community’s reassurances that the U.S. government cannot use purloined domestic data without individual, court-issued consent.
The most condemning passage found in the disclosures is the only one marked “Top Secret” within a document already labeled “Top Secret.” It reads, “In addition, in those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country. In either event, NSA will direct surveillance at a party to the communication reasonably believed to be outside the United States.” By being allowed to “acquire communication about [my emphasis] the target” that is not “to or from” the suspect, an analyst is given license to follow leads that do not necessarily begin outside the United States but “terminate in a foreign country.” The only way to determine if communications are “about” a target is to collect bulk data and analyze the contents.
Greenwald closes by mindfully stepping back to provide a comprehensive picture of the legal implications. Holder’s orders force the PRISM-affiliated companies to surrender all data for anyone who falls under these 2009 provisions. Under these clauses, American information is freely handed over without a warrant. In many respects, “The top secret rules that allow NSA to use US data without a warrant” is the most condemning article to date because when placed alongside the NSA’s “hopping” protocol, on paper the NSA has the right to surveil most every American due to happenstance association.
Almost seven hours after Gellman’s PRISM rewrite appeared—complemented by The Guardian’s “UK gathering secret intelligence via covert NSA operation,” both of which implicated GCHQ in the espionage controversy—sensing its association with the NSA and its own intelligence programs might be further comprised, the British government issued a “D-Notice” to the English press.54 A “D-Notice” or “Defence Advisory Notice” is an official request for the media to remain silent on an issue pertaining to national security. The nonSnowden-leaked D-Notice reads, in part, “Although none of these recent articles has contravened any of the guidelines contained within the Defence Advisory Notice System, the intelligence services are concerned that further developments of this same theme may begin to jeopardize both national security and possibly UK personnel.”55 A day after the island nation learned the whistleblower’s identity, British authorities sought retribution by issuing a global travel alert. It instructed airlines around the world to deny Snowden flight privileges because “the individual is highly likely to be refused entry to the U.K.”56 The warning was largely symbolic because Britain could not force non-English airports to comply (merely charge a reimbursement fee of $3,100 for detention and removal of Snowden if he stepped foot on British soil), nor did it reasonably believe Snowden would be foolish enough to enter the country. Snowden would have his just desserts 11 days later. It was now 11 days later.
As Washington was kept busy by yet another Greenwaldsponsored media blitz, The Guardian returned its attention to Britain. Greenwald passed the journalistic baton back to MacAskill’s team, which gave Snowden a birthday present titled, “GCHQ taps fibre-optic cables for secret access
to world’s communications.”57 The journalists based their report on data Snowden had stolen while at Dell.58 Predictably Washington knew restrictive legal hurdles would remain even if it used covert court orders to collect domestic information. It would be much more prudent to have another country spy on “foreign” America. The U.S. could then exchange foreign intelligence data to gain insight into its own citizenry.59 That is exactly what it does with GCHQ’s Tempora program.
Even though GCHQ had copies of PRISM, it didn’t need it. Tempora debuted in 2008 before being fully inaugurated at the beginning of 2012. It is a program that vacuums everything that crosses fiber-optic cables, storing metadata for 30 days and live content for three, thereby granting ample time for the information to be categorized, analyzed and recorded. Its access points are intercept probes where transatlantic cables enter British shores. This includes cables used by American Internet servers.
After Americans had been allowed to use Tempora on a provisional basis, they were granted full access. By May 2012, 300 GCHQ and 250 NSA analysts were tasked with sifting through Tempora’s incoming data. Thirteen months later, Clapper would testify on national television, “We [the intelligence community] couldn’t do it [access, analyze, and record domestic data] even if we wanted to.”60 Human sifting occurs after Tempora has winnowed frivolous information. Relevant data is captured using “selectors” chosen by both agencies.
Tempora’s aperture is wide. GCHQ chose 40,000 and the NSA 30,000 triggers. A “trigger” is a term or designation which, when found, culls the host document for further review. Each trigger adds another weave to the surveillance net. The denser the weave, the greater the amount of information is pulled out of the World Wide Web. Yahoo and Gmail use a similar program to scan the content of email in order to insert content-related advertising into user accounts.
The greater the number of triggers, the more data there is to analyze. Admittedly, even after filtration, the influx of information outpaces the joint effort. In 2012 GCHQ had taps on over 200 cables, cataloging the information as it went, but was only able to successfully analyze the contents of 46 lines. Each cable is able to process 21 petabytes a day. This is 192 times the amount of information found in all of the books in the British Library. The British Library houses over 150 million items. Due to bulk data analysis being labor and money intensive, Britain is increasing its storage capacity. If it cannot immediately analyze the data, it intends to keep it until it has the time and resources to do so.
GCHQ was not modest when outlining the program’s agenda. Two of its key components are titled “Mastering the Internet” and “Global Telecoms Exploitation.” Not to be outdone in respect to ambition, during a June 2008 visit overseas, General Alexander pondered, “Why can’t we collect all the signals all the time? Sounds like a good summer project for Menwith.” The quotation is included as a slogan on one of the disclosed Tempora slides.
Under the ruse of national self-defense, the countries have carte blanche license to gather anything and everything “foreign” to that particular country, including the contents of telephone calls and email messages, Facebook entries and browser history. In the event Holder’s disclosure is met with an American citizen who never leaves the country and has no foreign contacts, Britain is free to investigate the “foreigner” on America’s behalf. MacAskill reports that The Guardian was given to understand 850,000 NSA employees and contractors have access to GCHQ databases. The Guardian team leaves the reader to assume reciprocity applies to America’s surveillance records since England is a “friendly government.”
Like America, Britain also has domestic commercial “intercept partners”—BT, Verizon Business, Vodafone Cable, Global Crossing, Level 3, Viatel and Interoute—which comply under covert legal “agreements” complete with gag orders. Analogous to U.S. law, British wiretapping requires a signed warrant unless surveillance involves foreign communications, then a notarized blanket certificate suffices. A portion of domestic communications is conveniently relayed abroad before returning to Britain.
MacAskill conclusively documents America’s joint espionage enterprises with Britain. He also introduces a worldwide conspiracy which answers why GCHQ was not concerned about Canada or Australia during the G20 summits. The United States and England’s data sharing is not bilateral. They are only two of what is referred to as the “Five Eyes” of the world. Canada, Australia and New Zealand are included in the surveillance coop. (In intelligence terms, the United States is the first party, members of the Five Eyes are deemed second parties and all other nations are labeled third parties.)61 In 2012 Britain reported it had the “biggest internet access” of any of the clandestine association’s members. This is due to location but also because Britain, in GCHQ’s attorneys’ words, has “a light oversight regime compared with the U.S.” As NSA analysts were being briefed on Tempora, when they asked what the legal limits of surveillance were in England, the Americans were informed it was “your call.”
The Five Eyes are not a recent surveillance development. They are an extension of post-World War II alliances between the five English-speaking countries. An intelligence exchange program was designed, agreed upon and signed in 1947. It was referred to as the “Secret Treaty.”62
Of the various reactions to Tempora, the most adamant was Germany. In a matter of days, local newspapers reported one of the main cables connecting northern Germany to the United States was compromised at its British transition point. Federal Minister of Justice Sabine Leutheusser-Schnarrenberger referred to Tempora as a “nightmare.”63 Berlin demanded legal justification for England’s actions. Jan Philipp Albrecht, German member of the European Parliament, requested infringement procedures begin because Article 16 of the Treaties of the European Union had been violated.64 The United Nations (U.N.) had not been informed about Tempora and a vote had not been taken which permitted international surveillance.
Once it was established that GCHQ’s spying was not limited to isolated political events and operated at a level which made PRISM appear juvenile, as the world waited for more information about the other “three eyes” of global espionage, Snowden nodded his consent for the SCMP to continue its reporting on the NSA’s surveillance of China. On June 22, the day following the Tempora disclosures, SCMP premiered three articles.
Characteristically sparse, the Eastern periodical debuted “Snowden reveals more US cyberspying details”65 and “US spies on Chinese mobile phone companies, steals SMS data”66 an hour apart. The two exposés reveal the global telecommunications provider with over 46,000 kilometers of fiber-optic cable worldwide, Pacnet, had been mined by the NSA for its SMS data. SMS data is short for “small message service” and refers to the interception of millions of Chinese text messages. Pacnet’s headquarters are in Singapore and Hong Kong. The cable connects to data centers in mainland China, Hong Kong, Japan, Singapore, South Korea and Taiwan.
The NSA conducted its Pacnet espionage by exploiting technology gaps in American-made-and-sold Pacnet components which granted the agency backdoor access. The nation’s second-largest communications provider, China Unicom, finished replacing its American-made Cisco routers by Halloween 2012.67 Through these deliberately flawed68 products, the NSA had been spying on China Unicom’s 258 million users. Though China Unicom found this exploitation point on its own, Snowden’s disclosures undoubtedly spurred all Chinese technology firms to begin replacing and banning American communication hardware. But Snowden’s files were a double-edged sword. They also provided the Chinese government justification for implementing even stricter Internet controls.
“NSA targeted China’s Tsinghua University in extensive hacking attacks, says Snowden”69 arrived a little under two hours later. The report focuses on NSA-led cyberespionage on the computers and servers at another central Asian hub, this time in mainland China: Tsinghua University in Beijing. As with Chinese University, because the data collected includes specific IP addresses, foreign possession of the data confirms NSA hacking.
The revealed documents also show the attacks were focused efforts. Within a single day in January 2013, a minimum of 63 computers and servers had been compromised by the American agency. The U.S. intelligence community has a preoccupation with the Tsinghua system because it houses the world’s largest national research portal, the China Education and Research Network.
The Global Times, a pro-party newspaper, issued a call to arms as it vehemently condemned American foreign surveillance while periodically lapsing into hypocrisy. The daily stopped short of referring to America as a corporatocracy, wherein corporations are the governing bodies. Instead it announced that the division between American business and U.S. government had become indistinguishable, “Along with the expansion of American Internet barons which have extremely close relations with Washington, the ownership the Internet is now being used by Washington to serve its own interests. Snowden sounded the alarm, and we cannot cover our ears.” It lambasted American capitalism for having failed as an ideology, after making its inevitable plunge into a dictatorship: “Washington keeps a firm grip of the Internet where it abuses its power. But other countries are not united in fighting US hegemony in cyberspace.”70 The Sinocism China Newsletter outlined the possible economic implications of U.S. intelligence’s intrusive international surveillance: “If [Mark] Zuckerberg [the CEO of Facebook] had any remaining shred of hope that Facebook could come to China, he can kiss it goodbye thanks to Snowden.”71
By willfully hand-delivering proof of America’s hypocrisy, the Chinese equivalent to Twitter, Sina Weibo, exploded with applause for Snowden. Many commentators believed the NSA leaker’s Eastern approval was due to the hope that he might inspire one of their own in mainland China to tear down the Great Firewall of Internet censorship and surveillance. One Weibo user, nicknamed “Pretending to be in New York,” highlighted the irony of Snowden being in China and the two countries’ paradoxical political positions: “If Snowden were a Chinese citizen, 1) Hong Kong would agree to hand him over to the Chinese government; 2) the US would hail him as hero and then try to rescue him immediately; 3) his name would become a ‘sensitive word’ on the social media in China and all discussions related would be banned; 4) [o]ver a thrilling struggle, he would finally board the airplane to New York; 5) people would acclaim the escape on the social media in China; 6) New York University would invite him to be a visiting scholar.” Another user named Leigh Chiang sardonically noted, “It looks like Obama has been assimilated by a certain political party (Communist Party of China).”72 People took to the streets of Hong Kong, and protests were staged at the U.S. Consulate.73 But it was semi-autonomous Hong Kong which filled its headlines with Snowden; barring a few exceptions such as Global Times and The Sinocism China Newsletter (the latter is edited by an American living in Beijing), mainland China largely ignored him, for fear it would incite domestic upheaval.
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