The Independent's story on UK intelligence

Yesterday I posted THIS from the Independent. It turns out we have reason to be careful. I did think it strange that a leak from Edward Snowden should come throught the Independent when previously Greenwald and the Guardian have been the conduit

Snowden: UK government now leaking documents about itself

The NSA whistleblower says: 'I have never spoken with, worked with, or provided any journalistic materials to the Independent'

Glenn Greenwald

the Guardian,

23 August, 2013

The Independent this morning published an article - which it repeatedly claims comes from "documents obtained from the NSA by Edward Snowden" - disclosing that "Britain runs a secret internet-monitoring station in the Middle East to intercept and process vast quantities of emails, telephone calls and web traffic on behalf of Western intelligence agencies." This is the first time the Independent has published any revelations purportedly from the NSA documents, and it's the type of disclosure which journalists working directly with NSA whistleblower Edward Snowden have thus far avoided.

That leads to the obvious question: who is the source for this disclosure? Snowden this morning said he wants it to be clear that he was not the source for the Independent, stating:

I have never spoken with, worked with, or provided any journalistic materials to the Independent. The journalists I have worked with have, at my request, been judicious and careful in ensuring that the only things disclosed are what the public should know but that does not place any person in danger. People at all levels of society up to and including the President of the United States have recognized the contribution of these careful disclosures to a necessary public debate, and we are proud of this record.

"It appears that the UK government is now seeking to create an appearance that the Guardian and Washington Post's disclosures are harmful, and they are doing so by intentionally leaking harmful information to The Independent and attributing it to others. The UK government should explain the reasoning behind this decision to disclose information that, were it released by a private citizen, they would argue is a criminal act."

In other words: right as there is a major scandal over the UK's abusive and lawless exploitation of its Terrorism Act - with public opinion against the use of the Terrorism law to detain David Miranda - and right as the UK government is trying to tell a court that there are serious dangers to the public safety from these documents, there suddenly appears exactly the type of disclosure the UK government wants but that has never happened before. That is why Snowden is making clear: despite the Independent's attempt to make it appears that it is so, he is not their source for that disclosure. Who, then, is?

The US government itself has constantly used this tactic: aggressively targeting those who disclose embarrassing or incriminating information about the government in the name of protecting the sanctity of classified information, while simultaneously leaking classified information prolifically when doing so advances their political interests.

One other matter about the Independent article: it strongly suggests that there is some agreement in place to restrict the Guardian's ongoing reporting about the NSA documents. Speaking for myself, let me make one thing clear: I'm not aware of, nor subject to, any agreement that imposes any limitations of any kind on the reporting that I am doing on these documents. I would never agree to any such limitations. As I've made repeatedly clear, bullying tactics of the kind we saw this week will not deter my reporting or the reporting of those I'm working with in any way. I'm working hard on numerous new and significant NSA stories and intend to publish them the moment they are ready.

Related question

For those in the media and elsewhere arguing that the possession and transport of classified information is a crime: does that mean you believe that not only Daniel Ellsberg committed a felony, but also the New York Times reporters and editors did when they received, possessed, copied, transported and published the thousands of pages of top-secret documents known as the Pentagon Papers?

Do you also believe the Washington Post committed felonies when receiving and then publishing top secret information that the Bush administration was maintaining a network for CIA black sites around the world, or when the New York Times revealed in 2005 the top secret program whereby the NSA had created a warrantlesss eavesdropping program aimed at US citizens?

Or is this some newly created standard of criminality that applies only to our NSA reporting? Do media figures who are advocating that possessing or transmitting classified information is a crime really not comprehend the precedent they are setting for investigative journalism?

UPDATE

The Independent's Oliver Wright just tweeted the following

:

"For the record: The Independent was not leaked or 'duped' into publishing today's front page story by the Government."

Leaving aside the fact that the Independent article quotes an anonymous "senior Whitehall source", nobody said they were "duped" into publishing anything. The question is: who provided them this document or the information in it? It clearly did not come from Snowden or any of the journalists with whom he has directly worked. The Independent provided no source information whatsoever for their rather significant disclosure of top secret information. Did they see any such documents, and if so, who, generally, provided it to them? I don't mean, obviously, that they should identify their specific source, but at least some information about their basis for these claims, given how significant they are, would be warranted. 

One would think that they would not have published something like this without either seeing the documents or getting confirmation from someone who has: the class of people who qualify is very small, and includes, most prominently and obviously, the UK government itself.

NSA paid millions to cover 

Prism compliance costs for 

tech companies

• Top-secret files show first evidence of financial relationship
• Prism companies include Google and Yahoo, says NSA
• Costs were incurred after 2011 Fisa court ruling

the Guardian,

23 August, 2013

The National Security Agency paid millions of dollars to cover the costs of major internet companies involved in the Prism surveillance program after a court ruled that some of the agency's activities were unconstitutional, according to top-secret material passed to the Guardian.

The technology companies, which the NSA says includes Google,Yahoo, Microsoft and Facebook, incurred the costs to meet new certification demands in the wake of the ruling from the Foreign Intelligence Surveillance (Fisa) court.

The October 2011 judgment, which was declassified on Wednesday by the Obama administration, found that the NSA's inability to separate purely domestic communications from foreign traffic violated the fourth amendment.

While the ruling did not concern the Prism program directly, documents passed to the Guardian by whistleblower Edward Snowden describe the problems the decision created for the agency and the efforts required to bring operations into compliance. The material provides the first evidence of a financial relationship between the tech companies and the NSA.

The intelligence agency requires the Fisa court to sign annual "certifications" that provide the legal framework for surveillance operations. But in the wake of the court judgment these were only being renewed on a temporary basis while the agency worked on a solution to the processes that had been ruled illegal.

An NSA newsletter entry, marked top secret and dated December 2012, discloses the huge costs this entailed. "Last year's problems resulted in multiple extensions to the certifications' expiration dates which cost millions of dollars for Prism providers to implement each successive extension – costs covered by Special Source Operations," it says.

An NSA newsletter entry dated December 2012 disclosing the costs of new certification demands. Photograph: guardian.co.uk

Special Source Operations, described by Snowden as the "crown jewel" of the NSA, handles all surveillance programs, such as Prism, that rely on "corporate partnerships" with telecoms and internet providers to access communications data.

The disclosure that taxpayers' money was used to cover the companies' compliance costs raises new questions over the relationship between Silicon Valley and the NSA. Since the existence of the program was first revealed by the Guardian and the Washington Post on June 6, the companies have repeatedly denied all knowledge of it and insisted they only hand over user data in response to specific legal requests from the authorities.

An earlier newsletter, which is undated, states that the Prism providers were all given new certifications within days of the Fisa court ruling. "All Prism providers, except Yahoo and Google, were successfully transitioned to the new certifications. We expect Yahoo and Google to complete transitioning by Friday 6 October."

An earlier undated newsletter after the Fisa court ruling on certifications. Photograph: guardian.co.uk

The Guardian invited the companies to respond to the new material and asked each one specific questions about the scale of the costs they incurred, the form of the reimbursement and whether they had received any other payments from the NSA in relation to the Prism program.

A Yahoo spokesperson said: "Federal law requires the US government to reimburse providers for costs incurred to respond to compulsory legal process imposed by the government. We have requested reimbursement consistent with this law."

Asked about the reimbursement of costs relating to compliance with Fisacourt certifications, Facebook responded by saying it had "never received any compensation in connection with responding to a government data request".

Google did not answer any of the specific questions put to it, and provided only a general statement denying it had joined Prism or any other surveillance program. 

It added: "We await the US government's response to our petition to publish more national security request data, which will show that our compliance with American national security laws falls far short of the wild claims still being made in the press today."

Microsoft declined to give a response on the record.

The responses further expose the gap between how the NSA describes the operation of its Prism collection program and what the companies themselves say.

Prism operates under section 702 of the Fisa Amendments Act, which authorises the NSA to target without a warrant the communications of foreign nationals believed to be not on US soil.

But Snowden's revelations have shown that US emails and calls are collected in large quantities in the course of these 702 operations, either deliberately because the individual has been in contact with a foreign intelligence target or inadvertently because the NSA is unable to separate out purely domestic communications.

Last week, the Washington Post revealed documents from Snowden that showed the NSA breached privacy rules thousands of times a year, in the face of repeated assurances from Barack Obama and other senior intelligence figures that there was no evidence of unauthorised surveillance of Americans.

The newly declassified court ruling, by then chief Fisa judge John Bates, also revealed serious issues with how the NSA handled the US communications it was sweeping up under its foreign intelligence authorisations.

The judgment revealed that the NSA was collecting up to 56,000 wholly US internet communications per year in the three years until the court intervened. Bates also rebuked the agency for misrepresenting the true scope of a major collection program for the third time in three years.

The NSA newsletters say the agency's response to the ruling was to work on a "conservative solution in which higher-risk collection would be sequestered". At the same time, one entry states, the NSA's general counsel was considering filing an appeal.

The Guardian informed the White House, the NSA and the office of the director of national intelligence that it planned to publish the documents and asked whether the spy agency routinely covered all the costs of thePrism providers and what the annual cost was to the US.

The NSA declined to comment beyond requesting the redaction of the name of an individual staffer in one of the documents.

UPDATE: After publication, Microsoft issued a statement to the Guardian on Friday afternoon.

A spokesperson for Microsoft, which seeks reimbursement from the government on a case-by-case basis, said: "Microsoft only complies with court orders because it is legally ordered to, not because it is reimbursed for the work. We could have a more informed discussion of these issues if providers could share additional information, including aggregate statistics on the number of any national security orders they may receive."