President Obama

President Obama at a December 21, 2013 press conference explaining to reporters that he would not intercede in the legal processes of Edward Snowden

The NSA Super Hackers (And Your Cell Phone Secrets)

By R. Alan Clanton | published Tuesday, December 31, 2013 |
Thursday Review Editor

In a move that will surely escalate the issue to the U.S. Supreme Court, the ACLU filed a new lawsuit against the government in an effort to force the National Security Administration, and those agencies cooperating with the NSA (the Justice Department and the CIA), to disclose the details of a program which harvests metadata from cell phone companies, landline communications firms and internet providers.

The ACLU used the Freedom of Information Act, originally created in late 1966, as its legal wedge. Last week, Federal Judge William Pauley III, of the U.S. District Court (for the Southern District of N.Y.), ruled that the NSA’s data gathering was not a violation of the Constitution, nor did it conflict with either the First or Fourth amendments to the Constitution (see “Thwarting Terror: How Much of Your Personal Data is Enough?,” Thursday Review). Judge Pauley had essentially reversed the position of a lower Federal court, which had one week earlier ruled the spy program unconstitutional.

The issue has moved swiftly and dramatically in the past months after Edward Snowden, a computer technician and analyst working for the NSA, leaked thousands of pages of documents to the press. Snowden fled the U.S., spent a few days in hiding in Hong Kong, then, the young Snowden flew to Moscow, where he resides now pending his possible extradition to the United States.

Snowden’s stolen materials, which he slipped out of the NSA on small thumb drives, exposed the extensive reach of the NSA’s data-harvesting and thrust the issue into the news as Americans became aware that the NSA had been quietly collecting trillions of bits of digital information on virtually every aspect of their lives—telephone and cell phone calls, text messages, emails, uploads and downloads, search engine requests, and messages on social media.

Later, more documents revealed that the NSA’s reach also extended into the private messages and phone calls of foreign leaders in over 30 countries, including the personal calls and messages of German Chancellor Angela Merkel and emails of European Union market regulators. The U.S. government, according to the ACLU and others, has been using Executive Order 12333, established in 1981 and designed to define operational guidelines for surveillance of non-U.S. targets, as little more than a shield to cover its more comprehensive program of metadata harvesting.

The ACLU, which lost in its court case last week, will now use the FOIA to establish new traction on the issue by demonstrating that in its quest to gather detailed information on the activities of foreign targets, the NSA’s vast net also, inevitably, harvests the personal data and private information of millions of Americans. Much of the data caught in this wide net will include international calls, emails and text messages initiated or received by Americans.

“The core of the problem,” says Alex Abdo, an attorney with the ACLU, “is that the NSA has, for years, relied upon its authority to gather foreign intelligence as permission to conduct sweeping surveillance of American’s international communications.”

The case will land again in front of the U.S. District Court. The outcome of that decision will surely propel the case forward—since both the government and the ACLU have indicated they will appeal any adverse ruling—toward the U.S. Supreme Court.

But with each passing day and each news cycle, the problem becomes more complex and more startling.

Early today (December 31) the German newsmagazine Der Spiegel, having gained access to some of Snowden’s leaked documents, revealed that one team of NSA super-hackers had developed a way to gain access to tens of millions of smart phones through a set of shrewdly designed backdoor applications. According to some security experts, the NSA could then track and collate virtually all activity on those phones, including text messages, call origins, emails, files, phone apps and even images. A team of NSA super-geeks working at a Texas facility may have also developed ways to circumvent virtually any firewall or security system, whether that firewall is for business or personal application—and the implication in some of the leaked documents is that several major technology firms cooperated with the NSA hackers.

In a direct response, and as a way to calm the fears of some of its customers, Apple Computer released a statement declaring that it had no knowledge of any backdoor application being employed by the NSA to hack into Apple iPhones or other products, and stressed that the company had no backchannel pipeline for cooperation with the government. As of this writing, no other companies affected by the possible NSA hacking had commented publicly.

Der Spiegel also revealed that the NSA’s bag of covert tricks and backdoor solutions may be far more extensive than the most far-reaching assessments a few months ago when the story of the NSA’s program of data-collection first broke in the British newspaper The Guardian.

But the government attorneys, who say that the matter will be resolved in the courts, have consistently taken the position that average citizens have nothing to fear from the collection of such massive troves of personal data.

The issue may ultimately be resolved by the Supreme Court.

The FOIA has always had a thorny, complex exterior. When it was signed into law by President Lyndon Johnson, his core concern was that the Act might be used by some individuals or entities to gain access to intelligence-gathering processes crucial to the U.S. at the height of the Cold War and the fighting in Vietnam. Some things, Johnson reasoned, ought to remain secret, especially in the context of foreign espionage and covert action.

Over the decades, almost all subsequent Presidents have agreed with that assessment, even as Cold War tensions faded and new concerns over terrorism rose to fill the void. Since the FOIA, in theory, applied only to government matters at home—as it applied to American citizens and their right to know—intelligence gathering operations were largely a different matter entirely, subject to Congressional approval when the limits of executive authority were reached.

In the aftermath of Watergate, Congress and the Executive branch struggled over expanding the scope of the FOIA. Feeling it politically important, President Gerald Ford initially wanted to expand the FOIA’s reach, but he was dissuaded by some of his closest advisors (including neocons Dick Cheney and Donald Rumsfeld). Congress nevertheless increased the breadth of the FOIA, and the tide has ebbed and flowed ever since, with limitations and exclusions ushered in during the Reagan years, and modest liberalizations during the Clinton years. George W. Bush had it both ways, ushering in some restrictions as a way to shield anti-terror operations, but also offering wider accountability in domestic areas, including the information shared by American law enforcement.

Still, almost all presidents have sought—in some shape or form—to shield those processes critical to national security and anti-terrorism operations from public view. In this sense, all presidents since Johnson have maintained a legal defensive zone as a measure of protecting the government from FOIA intrusions that might jeopardize security or enable potential terror plots.

But the NSA’s new sweeping activities—largely automated and based on sophisticated code—now include the broadly-defined process of collecting virtually all digital data from Americans, without regard to its value to potential terror plots or strategic concerns. And the new super-secret NSA facility nearing completion in the desert south of Salt Lake City—a massive complex which will house the largest set of computers and file servers on Earth—means that the NSA will have the ability to harvest and track any digital engagement by any American. This already includes records of land line and cell phone calls, text messages, online purchases, search engine requests, emails, and uploads and downloads of any size or form.

The revelations earlier today in Der Spiegel merely add fuel to an already red-hot fire, and may ultimately lead to strained relations with some U.S. allies—already made nervous by the thought of computers tracking their every move and the image of NSA analysts listening in on the conversations of politicians, heads-of-state, and even average people worldwide.

[This is one of a series of articles Thursday Review plans to prepare over the next few weeks as this story develops.]