In NSA-intercepted data, those not targeted far outnumber the
foreigners who are
Files provided by Snowden show extent to which ordinary Web users
are caught in the net
Ordinary Internet users, American and non-American alike, far
outnumber legally targeted foreigners in the communications
intercepted by the
National Security Agency from U.S. digital networks, according
to a four-month investigation by The Washington Post.
Nine of 10 account holders found in a large cache of intercepted
conversations, which former NSA contractor
Edward Snowden provided in full to The Post, were not the
intended surveillance targets but were caught in a net the agency
had cast for somebody else.
Many of them were Americans. Nearly half of the surveillance
files, a strikingly high proportion, contained names, e-mail
addresses or other details that the NSA marked as belonging to U.S.
citizens or residents. NSA analysts masked, or “minimized,” more
than 65,000 such references to protect Americans’ privacy, but The
Post found nearly 900 additional e-mail addresses, unmasked in the
files, that could be strongly linked to U.S. citizens or
U.S.residents.
The surveillance files highlight a policy dilemma that has been
aired only abstractly in public. There are discoveries of
considerable intelligence value in the intercepted messages — and
collateral harm to privacy on a scale that the Obama administration
has not been willing to address.
Among the most valuable contents — which The Post will not
describe in detail, to avoid interfering with ongoing operations —
are fresh revelations about a secret overseas nuclear project,
double-dealing by an ostensible ally, a military calamity that
befell an unfriendly power, and the identities of aggressive
intruders into U.S. computer networks.
A breakdown of the cache of
NSA-intercepted communications provided to the Washington Post
by Edward Snowden
Months of tracking communications across more than 50 alias
accounts, the files show, led directly to the 2011 capture in
Abbottabad of Muhammad Tahir Shahzad, a Pakistan-based bomb builder,
and Umar Patek, a suspect in a 2002 terrorist bombing on the
Indonesian island of Bali. At the request of CIA officials, The Post
is withholding other examples that officials said would compromise
ongoing operations.
Many other files, described as useless by the analysts but
nonetheless retained, have a startlingly intimate, even voyeuristic
quality. They tell stories of love and heartbreak, illicit sexual
liaisons, mental-health crises, political and religious conversions,
financial anxieties and disappointed hopes. The daily lives of more
than 10,000 account holders who were not targeted are catalogued and
recorded nevertheless.
In order to allow time for analysis and outside reporting,
neither Snowden nor The Post has disclosed until now that he
obtained and shared the content of intercepted communications. The
cache Snowden provided came from domestic NSA operations under the
broad authority granted by Congress in 2008 with amendments to the
Foreign Intelligence Surveillance Act. FISA content is generally
stored in closely controlled data repositories, and for more than a
year, senior government officials have depicted it as beyond
Snowden’s reach.
The Post reviewed roughly 160,000 intercepted e-mail and
instant-message conversations, some of them hundreds of pages long,
and 7,900 documents taken from more than 11,000 online accounts.
The material spans President Obama’s first term, from 2009 to 2012, a
period of exponential growth for the NSA’s domestic collection.
Taken together, the files offer an unprecedented vantage point on the
changes wrought by
Section 702 of the FISA amendments, which enabled the NSA to make
freer use of methods that for 30 years had required probable cause and a
warrant from a judge. One program, code-named
PRISM, extracts content stored in user accounts at Yahoo, Microsoft,
Facebook, Google and five other leading Internet companies. Another,
known inside the NSA as Upstream, intercepts data on the move as it
crosses the U.S. junctions of global voice and data networks.
No government oversight body, including the Justice Department, the
Foreign Intelligence Surveillance Court, intelligence committees in
Congress or the president’s Privacy and Civil Liberties Oversight Board,
has delved into a comparably large sample of what the NSA actually
collects — not only from its targets but also from people who may cross
a target’s path.
Among the latter are medical records sent from one family member to
another, résumés from job hunters and academic transcripts of
schoolchildren. In one photo, a young girl in religious dress beams at a
camera outside a mosque.
Scores of pictures show infants and toddlers in bathtubs, on swings,
sprawled on their backs and kissed by their mothers. In some photos, men
show off their physiques. In others, women model lingerie, leaning
suggestively into a webcam or striking risque poses in shorts and bikini
tops.
“None of the hits that were received were relevant,” two Navy
cryptologic technicians write in one of many summaries of nonproductive
surveillance. “No additional information,” writes a civilian analyst.
Another makes fun of a suspected kidnapper, newly arrived in Syria
before the current civil war, who begs for employment as a janitor and
makes wide-eyed observations about the state of undress displayed by
women on local beaches.
By law, the NSA may “target” only foreign nationals located overseas
unless it obtains a warrant based on probable cause from a special
surveillance court. For collection under PRISM and Upstream rules,
analysts must state a reasonable belief that the target has information
of value about a foreign government, a terrorist organization or the
spread of nonconventional weapons.
Most of the people caught up in those programs are not the targets
and would not lawfully qualify as such. “Incidental collection” of
third-party communications is inevitable in many forms of surveillance,
but in other contexts the U.S. government works harder to limit and
discard irrelevant data. In criminal wiretaps, for example, the FBI is
supposed to stop listening to a call if a suspect’s wife or child is
using the phone.
There are many ways to be swept up incidentally in surveillance aimed
at a valid foreign target. Some of those in the Snowden archive were
monitored because they interacted directly with a target, but others had
more-tenuous links.
If a target entered an online chat room, the NSA collected the words
and identities of every person who posted there, regardless of subject,
as well as every person who simply “lurked,” reading passively what
other people wrote.
“1 target, 38 others on there,” one analyst wrote. She collected data
on them all.
In other cases, the NSA designated as its target the Internet
protocol, or IP, address of a computer server used by hundreds of
people.
The NSA treats all content intercepted incidentally from third
parties as permissible to retain, store, search and distribute to its
government customers. Raj De, the agency’s general counsel, has
testified that the NSA does not generally attempt to remove irrelevant
personal content, because it is difficult for one analyst to know what
might become relevant to another.
The Obama administration declines to discuss the scale of incidental
collection. The NSA, backed by Director of National Intelligence James
R. Clapper Jr., has asserted that it is unable to make any estimate,
even in classified form, of the number of Americans swept in. It is not
obvious why the NSA could not offer at least a partial count, given that
its analysts routinely pick out “U.S. persons” and mask their
identities, in most cases, before distributing intelligence reports.
If Snowden’s sample is representative, the population under scrutiny
in the PRISM and Upstream programs is far larger than the government has
suggested. In a June 26 “transparency report,” the Office of the
Director of National Intelligence disclosed that
89,138 people were targets of last year’s collection under FISA
Section 702. At the 9-to-1 ratio of incidental collection in Snowden’s
sample, the office’s figure would correspond to nearly 900,000 accounts,
targeted or not, under surveillance.
‘He didn’t get this data’
U.S. intelligence officials declined to confirm or deny in general
terms the authenticity of the intercepted content provided by Snowden,
but they made off-the-record requests to withhold specific details that
they said would alert the targets of ongoing surveillance. Some
officials, who declined to be quoted by name, described Snowden’s
handling of the sensitive files as reckless.
In an interview, Snowden said “primary documents” offered the only
path to a concrete debate about the costs and benefits of Section 702
surveillance. He did not favor public release of the full archive, he
said, but he did not think a reporter could understand the programs
“without being able to review some of that surveillance, both the
justified and unjustified.”
“While people may disagree about where to draw the line on
publication, I know that you and The Post have enough sense of civic
duty to consult with the government to ensure that the reporting on and
handling of this material causes no harm,” he said.
In Snowden’s view, the PRISM and Upstream programs have “crossed the
line of proportionality.”
“Even if one could conceivably justify the initial, inadvertent
interception of baby pictures and love letters of innocent bystanders,”
he added, “their continued storage in government databases is both
troubling and dangerous. Who knows how that information will be used in
the future?”
For close to a year, NSA and other government officials have appeared
to deny, in congressional testimony and public statements, that Snowden
had any access to the material.
As recently as May, shortly after he retired as NSA director, Gen.
Keith Alexander denied that Snowden could have passed FISA content to
journalists.
“He didn’t get this data,” Alexander told a New Yorker reporter.
“They didn’t touch —”
“The operational data?” the reporter asked.
“They didn’t touch the FISA data,” Alexander replied. He added, “That
database, he didn’t have access to.”
Robert S. Litt, the general counsel for the Office of the Director of
National Intelligence, said in a prepared statement that Alexander and
other officials were speaking only about “raw” intelligence, the term
for intercepted content that has not yet been evaluated, stamped with
classification markings or minimized to mask U.S. identities.
“We have talked about the very strict controls on raw traffic, the
training that people have to have, the technological lockdowns on
access,” Litt said. “Nothing that you have given us indicates that
Snowden was able to circumvent that in any way.”
In the interview, Snowden said he did not need to circumvent those
controls, because his final position as a contractor for Booz Allen at
the NSA’s Hawaii operations center gave him “unusually broad, unescorted
access to raw SIGINT [signals intelligence] under a special ‘Dual
Authorities’ role,” a reference to Section 702 for domestic collection
and Executive Order 12333 for collection overseas. Those credentials, he
said, allowed him to search stored content — and “task” new collection —
without prior approval of his search terms.
“If I had wanted to pull a copy of a judge’s or a senator’s e-mail,
all I had to do was enter that selector into XKEYSCORE,” one of the
NSA’s main query systems, he said.
The NSA has released an e-mail exchange acknowledging that Snowden
took the required training classes for access to those systems.
‘Minimized U.S. president’
At one level, the NSA shows scrupulous care in protecting the privacy
of U.S. nationals and, by policy, those of its four closest intelligence
allies — Britain, Australia, Canada and New Zealand.
More than 1,000 distinct “minimization” terms appear in the files,
attempting to mask the identities of “possible,” “potential” and
“probable” U.S. persons, along with the names of U.S. beverage
companies, universities, fast-food chains and Web-mail hosts.
Some of them border on the absurd, using titles that could apply to
only one man. A “minimized U.S. president-elect” begins to appear in the
files in early 2009, and references to the current “minimized U.S.
president” appear 1,227 times in the following four years.
Even so, unmasked identities remain in the NSA’s files, and the
agency’s policy is to hold on to “incidentally” collected U.S. content,
even if it does not appear to contain foreign intelligence.
In one exchange captured in the files, a young American asks a
Pakistani friend in late 2009 what he thinks of the war in Afghanistan.
The Pakistani replies that it is a religious struggle against 44 enemy
states.
Startled, the American says “they, ah, they arent heavily
participating . . . its like . . . in a
football game, the other team is the enemy, not the other teams waterboy
and cheerleaders.”
“No,” the Pakistani shoots back. “The ther teams water boy is also an
enemy. it is law of our religion.”
“haha, sorry thats kind of funny,” the American replies.
When NSA and allied analysts really want to target an account, their
concern for U.S. privacy diminishes. The rationales they use to judge
foreignness sometimes stretch legal rules or well-known technical facts
to the breaking point.
In their classified internal communications, colleagues and
supervisors often remind the analysts that PRISM and Upstream collection
have a “lower threshold for foreignness ‘standard of proof’ ” than a
traditional surveillance warrant from a FISA judge, requiring only a
“reasonable belief” and not probable cause.
One analyst rests her claim that a target is foreign on the fact that
his e-mails are written in a foreign language, a quality shared by tens
of millions of Americans. Others are allowed to presume that anyone on
the chat “buddy list” of a known foreign national is also foreign.
In many other cases, analysts seek and obtain approval to treat an
account as “foreign” if someone connects to it from a computer address
that seems to be overseas. “The best foreignness explanations have the
selector being accessed via a foreign IP address,” an NSA supervisor
instructs an allied analyst in Australia.
Apart from the fact that tens of millions of Americans live and
travel overseas, additional millions use simple tools called proxies to
redirect their data traffic around the world, for business or pleasure.
World Cup fans this month have been using a browser extension called
Hola to watch live-streamed games that are unavailable from their own
countries. The same trick is routinely used by Americans who want to
watch BBC video. The NSA also relies routinely on locations embedded in
Yahoo tracking cookies, which are widely regarded by online advertisers
as unreliable.
In an ordinary FISA surveillance application, the judge grants a
warrant and requires a fresh review of probable cause — and the content
of collected surveillance — every 90 days. When renewal fails, NSA and
allied analysts sometimes switch to the more lenient standards of PRISM
and Upstream.
“These selectors were previously under FISA warrant but the warrants
have expired,” one analyst writes, requesting that surveillance resume
under the looser standards of Section 702. The request was granted.
‘I don’t like people knowing’
She was 29 and shattered by divorce, converting
to Islam in search of comfort and love. He was three years younger,
rugged and restless. His parents had fled Kabul and raised him in
Australia, but he dreamed of returning to Afghanistan.
One day when she was sick in bed, he brought her tea. Their faith
forbade what happened next, and later she recalled it with shame.
“what we did was evil and cursed and may allah swt MOST merciful
forgive us for giving in to our nafs [desires]”
Still, a romance grew. They fought. They spoke of marriage. They
fought again.
All of this was in the files because, around the same time, he went
looking for the Taliban.
He found an e-mail address on its English-language Web site and wrote
repeatedly, professing loyalty to the one true faith, offering to “come
help my brothers” and join the fight against the unbelievers.
On May 30, 2012, without a word to her, he boarded a plane to begin a
journey to Kandahar. He left word that he would not see her again.
If that had been the end of it, there would not be more than 800
pages of anguished correspondence between them in the archives of the
NSA and its counterpart, the Australian Signals Directorate.
He had made himself a target. She was the collateral damage, placed
under a microscope as she tried to adjust to the loss.
Three weeks after he landed in Kandahar, she found him on Facebook.
“Im putting all my pride aside just to say that i will miss you
dearly and your the only person that i really allowed myself to get
close to after losing my ex husband, my dad and my brother.. Im glad it
was so easy for you to move on and put what we had aside and for me well
Im just soo happy i met you. You will always remain in my heart. I know
you left for a purpose it hurts like hell sometimes not because Im needy
but because i wish i could have been with you.”
His replies were cool, then insulting, and gradually became
demanding. He would marry her but there were conditions. She must submit
to his will, move in with his parents and wait for him in Australia. She
must hand him control of her Facebook account — he did not approve of
the photos posted there.
She refused. He insisted:
“look in islam husband doesnt touch girl financial earnigs unless she
agrees but as far as privacy goes there is no room….i need to have all
ur details everything u do its what im supposed to know that will guide
u whether its right or wrong got it”
Later, she came to understand the irony of her reply:
“I don’t like people knowing my private life.”
Months of negotiations followed, with each of them declaring an end
to the romance a dozen times or more. He claimed he had found someone
else and planned to marry that day, then admitted it was a lie. She
responded:
“No more games. You come home. You won’t last with an afghan
girl.”
She begged him to give up his dangerous path. Finally, in
September, she broke off contact for good, informing him that she
was engaged to another man.
“When you come back they will send you to jail,” she warned.
They almost did.
In interviews with The Post, conducted by telephone and Facebook,
she said he flew home to Australia last summer, after failing to
find members of the Taliban who would take him seriously. Australian
National Police met him at the airport and questioned him in
custody. They questioned her, too, politely, in her home. They
showed her transcripts of their failed romance. When a Post reporter
called, she already knew what the two governments had collected
about her.
Eventually, she said, Australian authorities decided not to
charge her failed suitor with a crime. Police spokeswoman Emilie
Lovatt declined to comment on the case.
Looking back, the young woman said she understands why her
intimate correspondence was recorded and parsed by men and women she
did not know.
“Do I feel violated?” she asked. “Yes. I’m not against the fact
that my privacy was violated in this instance, because he was
stupid. He wasn’t thinking straight. I don’t agree with what he was
doing.”
What she does not understand, she said, is why after all this
time, with the case long closed and her own job with the Australian
government secure, the NSA does not discard what it no longer needs.
Jennifer Jenkins and Carol D. Leonnig
contributed to this report.
Barton Gellman writes for the national staff. He has contributed
to three Pulitzer Prizes for The Washington Post, most recently
the 2014 Pulitzer Prize for Public Service.
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