America spying on the rest of the world

Malcolm Turnbull is one of the few Australian politicians to go on the attack after revelations about US spying on overseas citizens through internet and telecommunications services. The spying by the program called PRISM was revealed by the Guardian and the Washington Post on Thursday. Turnbull said Australians would be troubled by “large scale, covert surveillance of private data belonging to non-US citizens” held by Google, Facebook, Apple, Microsoft and Amazon.

Turnbull said he thought Australians had always understood data housed on US servers was subject to US laws such as the Patriot Act. “But (PRISM) suggests there is extensive surveillance and interception of foreign citizens’ data without a court order and indeed without the knowledge of the internet companies themselves,” he said. With the move to cloud computing, the issue has increasingly profound implications for international relations.

President Barack Obama skipped over those concerns when he admitted yesterday the Guardian and Washington Post stories were broadly accurate. Obama denied they were using tech companies’ information to spy on US citizens and people living in the US. But he did not deny they used the data from outside America. It was a short press conference with one question and the American journalists used the follow-up to ask was it okay to leak rather than the larger question of whether it was okay to spy on foreigners.

There were two revelations wrapped up in the one. On Thursday the news broke the FBI had a secret court order gaining access to all of phone company Verizon’s logs on a daily basis according to Patriot Act (2001), 50 USC section 1861. Under 50 USC § 1861 the FBI can request “any tangible things” to get foreign intelligence terrorism information against non-US citizens or against US citizens if it doesn’t infringe their first amendment rights.

The FBI gave the data to the National Security Agency. The NSA doesn’t get the calls but they get all the IT metadata which records details such as who made the call, where and when and for how long they called. This is arguably defensible as a non-too-intrusive invasion of privacy only affecting the US. “Nobody is listening to your telephone calls,” Obama said. The gathering of metadata was just a “modest encroachments on privacy.”

But the second part of the revelation has more profound consequences worldwide. This is the NSA program PRISM “a covert collaboration between the NSA, FBI, and nearly every tech company you rely on daily.” Starting in 2007 under President Bush and renewed by Obama using another section of the Patriot Act, the law permits the targeting of customers of participating firms who live outside the US and also Americans who communicate with people outside the US.

The FBI’s Data Intercept Technology Unit program has been extended to access the servers of Facebook, Google, Microsoft, Yahoo, YouTube, Skype, AOL, Apple and video chat company Paltalk. As with Verizon, the FBI passed on the information to NSA. According to WaPo, PRISM can “watch your ideas form as you type.” This deal gives the NSA full access – not just to the metadata but the message contents.

Obama refused to mention PRISM by name. These were classified operations overseen by Congress and the Foreign Intelligence Surveillance (FISA) Court, “With respect to the Internet and emails, this does not apply to US citizens, and it does not apply to people living in the US,” he said.

Facebook and Google denied involvement in the program. Steve Zuckerberg said they never received a blanket request or court order from government agencies asking for information or metadata in bulk and would fight aggressively if they did. Google boss Larry Page’s response was “WTF”. He said they never heard of Prism and they had never authorised large scale direct access to their information. Zuckerberg and Page have plausible deniability but someone in these organisations would have been aware of the court orders. A notable absentee from the list was Twitter which has a history of data request non-compliance, though its data is also publicly available.

Obama reminded journalists of his “two biggest commitments”: to keep the American people safe; and… to uphold the Constitution.” Obama repeated his call for the US to end its “perpetual war mindset” (a comment that caused Wonkblog to ask if Obama was the leaker) but a balance would remain between privacy concerns and the need to keep Americans safe, because, “there are some trade-offs involved.”

Obama is finding those trade-offs difficult to deal with, like Bush before him. Keeping 21st century Americans safe with an 18th century constitution is an impossible task. At least Americans have some safeguards against their government. The rest of us, as Malcolm Turnbull reminds us, have none.

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