Dark Mirror

by Barton Gellman

  I wondered, on the other hand, whether I had stumbled on a safe place for a backup. If Williams & Connolly represented me, could the firm hold a copy in its vault under lawyer-client privilege? Baine shifted a couple of inches in his chair, body language responding before he spoke the words. If the question became ripe, he said, he would have to take it up with his partners. It would be a tough sell. Post lawyers told me later that they made the same request and the firm declined.

  There were a few novel elements of the case. Baine and I chewed on them. Finally, I told him I had learned something disquieting two days before. My source had left the country, and I did not like what I knew of his whereabouts. I was not ready to specify, but the jurisdiction could not be described as friendly. A complicating factor, he said, but not a showstopper.

  As we parted, Baine added a caution. I had kept a lot of the facts in the bag so far. I was right to want a written contract with the Post, but the strength of my legal shield would depend on good faith all around. “You don’t want to leave out anything that makes them feel misled,” he said.

  Half an hour later I slipped into Post headquarters and climbed the back stairs to Don Graham’s ninth-floor suite. As Washington Post Company chairman, he had broader responsibilities now. He no longer ran the newspaper business himself. What exactly I wanted from him, I could not have said. An employer, still less an ex, did not count as family. I knew that but clung to the image. Graham had taken an interest since my summer internship at twenty-two, pretty much all my professional life. The rift with Brauchli pained him. When I came to say goodbye in 2010, he pulled me into a fierce embrace. Maybe I was looking for a sign that something of the bond endured. I had returned with a challenging story, I told him, the kind that burns a lot of lawyer time. I hoped the company would still have my back. I let that hang. He could not possibly answer, but Graham is not known for his poker face. I liked what I saw.

  Two floors down, the managing editor, Kevin Merida, brought Jeff Leen and the national editor, Cameron Barr, to a corporate conference room. Jay Kennedy and Jim McLaughlin, the in-house legal team, brought Kevin Baine. Everyone knew the decision would be Marty Baron’s to make, but I told them enough to show respect and prepare for the following day. Mysterious source. Codeword-classified document. NSA hooks in a lot of big internet companies. I needed legal cover, and so did my reporting partner, a filmmaker I would introduce if the Post wanted in.

  Baron reconvened us late the next morning, May 23. At the Boston Globe, I knew, he had led a gutsy investigation of child abuse in the Catholic Church, a powerful enemy in that town more than most. Record like that, the man had to have an ego. Wherever he stashed it left no bulges I could see. Baron projected authority without overt display. Two years later, Liev Schreiber would play him, a head taller but uncannily true to life, in Spotlight, the Academy Award–winning film about the church cover-up.

  Gang’s all here, Baron said, pointing his chin toward the legal contingent. I hear you have quite a story. Tell us about it.

  He had no other preamble. I had one. With apologies, I had to ask the group to leave mobile phones outside or remove the batteries. A couple of people looked as though I had asked them to peel off their socks. Baron settled the question, humoring me without comment. Kennedy, the Post’s general counsel, told me later, “I will confess at that moment I thought, ‘Really?’ I had never heard anyone suggest a phone could be turned on and the microphone activated remotely. I thought, ‘Okay, this is starting off a little strangely.’”

  The two handwritten pages of notes I brought were a patchwork of arrows, underscores, inserts, and strikethroughs. This may take awhile to explain, I said. Baron listened without interruption for what must have been twenty minutes. I explained how PRISM worked, how it fit with what we knew before, how the story came to me, and how I planned to confirm it. If we came to terms, Baron would have hard decisions to make about the journalistic, legal, and national security risks. Respectfully, I would have to make my own. I did not mean to encroach on his prerogatives, but I was no longer an employee. Obviously, he had the final call on what went into the paper, but there were things I was not prepared to leave out and things I was not prepared to disclose. If we could not reach a meeting of minds—I floundered for a diplomatic formula—I would understand. Maybe, I said lamely, we could try for another story one day. Leen, who had stuck his neck out, looked to be in a retracting frame of mind. Of course I was encroaching on Baron’s prerogatives.

  I noticed after a while that I had shifted to plural pronouns, unconsciously hoping to wedge myself into “we.” The source, I said, was pushing hard for us to publish a story within three days. I did not think we could be ready that soon, and I was playing for time, but that would not work for long. The source also insisted that our story be accompanied online by the full PRISM document and its cryptographic signature.

  Crypto-what?

  I had not thought to rehearse this part. Also, the standard metaphors of cryptography are stupid. I wish I had a recording of the next few minutes, which felt to me like an Abbott and Costello routine. Okay, I said, so you have these two keys, a public key and a private key. (Blank stares.) The keys are used to encrypt and decrypt, but the private key can also “sign” a file. (So the key is kind of like a pen?) Not really. Maybe. I guess you could say that. Point is, the signature lets you know for sure who sent the file, because each key has a unique fingerprint. (So these keys, they’re biometric?) No. Fingerprint is just a metaphor. The important thing is that you can’t use a signing key unless you know the passphrase to unlock it. (Wait, you unlock . . . a key?) Forget that. Another terrible metaphor. But I have to mention one more thing. The signature guarantees the file’s contents, ensuring it is unaltered from the original. Think of it as a certified snapshot. (So the key is kind of like a camera?) No. Not a camera. Let’s start over.

  All we need to cover here is that if a file is signed, you can check the signature mathematically. Never mind how. If the signature is valid, you know who signed the file, and you know the file has not changed. (Oh. So how come you didn’t just say—) Right. You’re right.

  “Why does your source care about the signature?” a smart person asked.

  That was the right question. I did not know. When I found out later, the answer threw our project into crisis. For now, all I could say was that I did not think we could agree to the source’s request. There was no doubt in my mind that the PRISM document had vital news value. Parts of it, on the other hand, described the particulars of surveillance against obvious adversaries. If you believed in intelligence collection at all, these were legitimate targets. No way would we want to say where, when, how, and what the NSA learned about them. And any edits we made in the document, any omission, would void the cryptographic signature. It was a math thing. The file and its signature would no longer match. They would not almost match. It was a yes-or-no question.

  We set that aside for the moment. I had another big subject to cover. The Post could not handle a story this sensitive in anything like a normal newsroom environment. I did not live in Washington, so two or three members of the staff should learn how to email and chat online securely. When working with the source material, the Post team would need dedicated computers with freshly wiped, encrypted hard drives. Networking hardware should be physically removed from those machines, cutting them off from the internet and newsroom production systems. Baron would have to find us a windowless room with a high-security lock, reinforced door, and heavy safe bolted to the floor. Decryption key files, stored on memory cards, would never be in the same room except when in use. You don’t have to write this stuff down, I said. I brought a list. Once these precautions were in place, access to the classified material would require four credentials: door key, safe combination, digital key card, and passphrases. We would divide the credentials among team members. No one but me would have all of them.

  Oh God. Did I just tell B
aron I would lock him out of his own workspace?

  Anything else? Baron asked, expression opaque.

  Don Graham should never play cards with this guy. The corner of Baron’s mouth might have moved a little. Was he suppressing a smile? Was it a good kind of smile, the understanding kind? Maybe it was a bad kind, a “nice to meet you, time to leave” kind of smile. Hard to tell.

  Sorry, Marty, almost done. Just a couple more things.

  Even with all the security, I felt responsible to decide for myself how much source material to transfer to the Post. If I knew I would not agree to make something public, sharing it introduced a needless risk. I could show Baron the full PRISM document, but I would hand over only the pages that we both were inclined to print. My source, meanwhile, had placed himself in serious jeopardy. I did not feel comfortable sharing his name. Or his location.

  About that. The source had flown overseas. My filmmaker friend, the one who introduced us, had invited me to fly there with her.

  He’s overseas, Baron said. A statement, not a question. He did not like it much.

  Yes, I said. I just found out. It is not a friendly jurisdiction, but this is not something in my power to control. Either I fly there or I don’t. It would go against every instinct to pass up a face-to-face interview.

  I had one last high-handed request. I wanted Julie Tate on this story, the newspaper’s alpha researcher and an old friend. If more documents became available, I would appreciate a say in Baron’s choice of reporters to join the team. “If” was a thin veil, a hint of incentive. Even so, I had blatantly invited myself, once again, onto the executive editor’s turf.

  I trailed off, replaying my words as they must have sounded to him. The list had made sense when I wrote it, but how could any editor sign on to all this? The faces around the table, if I read them right, did not like my odds. All eyes turned to Baron.

  You mentioned a filmmaker, he said mildly. What was her name again? How well do you know her?

  I explained my history with Poitras and the source. Poitras needed a byline, and her reporting had more than earned it. Baron asked a lot of questions, some of which I had covered with Snowden and some of which I had not thought to ask. By now, I was certain that the PRISM document was real, I said, but I knew we would need better evidence than that. I could get second sources for parts of it, but there was no chance I would confirm the whole thing independently. The best-case scenario, and the likeliest, was that the U.S. government would be alarmed enough to try to talk us out of the story. I planned to say we would not engage in that conversation hypothetically. I had held that line before. If intelligence officials wanted to assert grave harm, they would have to acknowledge the document was real. This was not a trick or a bargaining point. “Let’s pretend” was simply incompatible with honest discussion of the interests at stake.

  Baron had not had occasion for conversations of that sort at the Globe. He wanted to know how they usually worked. Leen and Cameron Barr explained that the Post asked for comment and context when a story touched on classified matters, same as we did on any other story. The government sometimes asked us to hold something back. We would ask why. McLaughlin, who had deftly handled several such episodes as the paper’s deputy general counsel, said a parallel channel might open among the lawyers. Sometimes we agreed to trim a fact, sometimes we refused, and sometimes we rewrote a sentence to convey the news without disclosing a gratuitous detail. If the government did not like my answer, I said, it might escalate to Baron or even the publisher. In my own experience, these exchanges could be civil or very much not. There had been times when officials explained their concerns persuasively by telling me, off the record, a sensitive piece of context I did not know. At other times, they refused to engage at all. Twice they had told me that if my purported information was accurate, then publication would bring a referral to the Justice Department for criminal investigation. Meanwhile, I could go to hell.

  “I’m ready to show the document if you are,” I told Baron. Baine caught his eye, and something passed between them. Time Warner had cut me off long before this. Go ahead, Baron said.

  I booted one of my throwaway laptops with a thumb drive. From a second encrypted thumb drive, I opened the PRISM slide deck to its cover page.

  The style fit a briefing subculture I had come to know at the Pentagon. All the archetypes were here: cheesy graphics and emblems crammed against starbursts, charts, tables, arrows, and acronyms. The company logos grabbed Baron’s attention first, as familiar as any leading American brands. I pointed to a round official seal just below them on the left. That belonged to Special Source Operations, PRISM’s parent organization in the NSA. See that eagle with talons closed on what look like strands of twine around the globe? Those are fiber optic cables. The internet. The eagle has the internet in its claws. International telephone networks, too.

  Not very subtle, someone said. No kidding. At the State Department or the Pentagon, most people who wrote memos had probably heard of the “front-page rule”: before you write it down, imagine the news headline. They might not take the maxim to heart, but they knew in some abstract way that secret documents sometimes leaked. An American eagle as predator, the whole world its prey, was the sigil of an agency that could not even conceive of a public readership.

  I gave Baron the overview I wished I’d had when I first read these slides. Take a look farther down the cover page, I said, where “S35333” appears in smaller type. S stands for the Signals Intelligence Directorate, S3 for Data Acquisition, and each digit after that identifies a subordinate function. S353, the eagle people at Special Source Operations, pulled in monumental flows of information from the main trunk lines and switches that carry voice and data around the world. The owners of that infrastructure, mostly big corporations, were the “special sources.” The NSA paid them off, rerouted their traffic surreptitiously, hacked into their equipment, or relied on foreign allies with methods of their own. Conveniently for U.S. intelligence, an outsized share of global communications traversed the United States. A call or email from Barcelona to Bogotá might well pass through Miami.

  PRISM, or S35333, was another kind of access for the eagle folk. Here the special sources were the American-based internet giants: Google, Facebook, Yahoo, Microsoft, AOL, Skype, YouTube, and Apple. Also a service called Paltalk, which I had not heard of but that presumably hosted accounts of attractive targets. The great thing about those companies, from an intelligence collector’s point of view, was that they did much more than push data through pipes. Unlike AT&T and other common carriers, they stored the content their users sent and received. The NSA did not have to chase down all those emails, videos, photographs, and documents as they raced across fiber optic cables at the speed of light. Collection could wait until the data arrived somewhere and held still. (Or, as often happened when faced with alternatives, the NSA could choose to do both.) Exabytes of user information—that is, thousands of millions of billions of bytes—were assembled on big U.S. company data servers. Years of records might be stored in a single account. Eric Schmidt, then chief executive officer of Google, famously said in 2010 that the world created as much information every two days as it had from “the dawn of civilization through 2003.” Some people questioned his numbers, but the general point was hard to dispute. The volume of data produced by humankind was expanding at a pace that beggared analogy. Google held a big chunk of that. Its peers in the PRISM collection system, along with Dropbox and other soon-to-be-added partners, dominated the global marketplace for search, messaging, video, email, and cloud storage.

  The NSA, in concert with the FBI, dipped into this treasure trove under a secret interpretation of the legal authority that Congress granted in 2007 and 2008. Until then, the government could not search a Skype or AOL account without a warrant from the Foreign Intelligence Surveillance Court. Each warrant required probable cause to believe that a specific account belonged to an agent of
a foreign power. The court nearly always granted those warrants, but it did perform an individual review. After Congress passed the Protect America Act and the FISA Amendments Act, Justice Department lawyers persuaded the court that it could authorize surveillance of an unlimited number of accounts with a single order. The court’s decision, based solely on government briefs, was classified as “sensitive compartmented information.”

  In the new arrangement, a judge no longer needed to hear a valid foreign intelligence purpose for surveillance of each proposed target. Neither the court nor the intelligence committees in Congress even knew who the targets were. Once a year, in a classified proceeding, the court approved two documents. The first one laid out rules meant to govern the NSA’s choice of accounts to monitor. The second one specified procedures for “minimizing,” or limiting access to, the identities of U.S. citizens, green card holders, and companies. The attorney general and the director of national intelligence certified that the NSA would follow these rules. After that, the agency chose targets at will, according to its understanding of the limits. The court would not know when the agency broke a rule unless the Justice Department, as required by still another rule, disclosed the violation to a judge.

  Collection was not deliberately aimed at Americans. The targets had to qualify as foreign. More precisely, and not as strictly, the NSA needed grounds to believe that a target was more likely foreign than not. Acquisition of foreign intelligence also had to be “a significant purpose” of the spying but not necessarily the sole or primary purpose. For various reasons, some avoidable and some not, a lot of Americans were swept in under those terms.