NSA pagou "milhões de dólares" a gigantes da Internet
Empresas como a Google, Microsoft e Facebook terão cobrado para ceder dados no âmbito do programa de vigilância electrónica
Documentos secretos ontem divulgados pelo jornal
The Guardian mostram que a Agência Nacional de Segurança (NSA) dos
Estados Unidos pagou milhões de dólares a empresas de Internet como a Google,
Microsoft, Yahoo e Facebook, para assegurar a sua colaboração com o seu programa
secreto de vigilância das comunicações electrónicas Prism.
Os pagamentos foram feitos para cobrir os custos incorridos por essas
empresas com a execução de programas informáticos destinados a separar o tráfego
de acordo com a sua proveniência, ou seja, a distinguir entre as mensagens
originadas no estrangeiro e as comunicações internas. Essa distinção tornou-se necessária depois de uma pronúncia do tribunal que supervisiona a legislação relativa à espionagem de informação estrangeira (o Foreign Intelligence Surveillance Act ou FISA), que em Outubro de 2011 precisou que a NSA podia aceder aos dados das comunicações internacionais, mas declarou inconstitucional a recolha das mensagens trocadas por cidadãos norte-americanos sobre os quais não recaíam suspeitas de terrorismo.
Esse despacho foi divulgado na quarta-feira por decisão da Casa Branca, que autorizou a desclassificação do documento (todas as decisões no âmbito do FISA são secretas por natureza). A decisão não se referia explicitamente ao Prism, mas antes aos métodos utilizados pela NSA para a intercepção de dados nas redes de fibra óptica dos EUA, e que resultaram na "aquisição de um grande número de comunicações protegidas pela quarta emenda constitucional", que defende os cidadãos contra buscas e apreensões injustificadas.
Os documentos ontem publicados pelo The Guardian - que constavam entre o material fornecido ao jornal britânico pelo ex-consultor informático Edward Snowden, que trabalhou para a CIA e a NSA - incluem correspondência da NSA classificada como top secret, onde são apontados "custos de milhões de dólares" para o erário público com o reembolso das empresas de Internet que tiveram de "actualizar" os seus programas para atender às exigências do tribunal.
Como explica a notícia, as operações de vigilância conduzidas pela NSA exigiam uma "certificação" anual do tribunal FISA, que garante a legalidade das operações de espionagem. "Os problemas do ano passado resultaram em múltiplas extensões das datas de expiração das certificações, cuja aplicação custa milhões de dólares aos fornecedores do Prism. Esses custos foram cobertos pelas Operações Especiais", diz um dos documentos fac-similados pelo Guardian, com data de Dezembro de 2012. De acordo com Snowden, as Operações Especiais lidavam com os programas de vigilância que assentavam em "parcerias com corporações" para o acesso aos dados.
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The material provides the first evidence of a financial
relationship between the tech companies and the
NSA.
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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
Ewen MacAskill in New York / http://www.theguardian.com/world/2013/aug/23/nsa-prism-costs-tech-companies-paid
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.
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An NSA newsletter entry dated December 2012 disclosing the
costs of new certification demands. Photograph: guardian.co.uk
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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."
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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 Fisa court 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 the
Prism 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."
Surveillance and the state: this way the debate goes on
Thanks to Edward Snowden, the world now has a debate about
the dramatic change in the contract between state and citizen
Editorial
The Guardian, Friday 23 August 2013 / http://www.theguardian.com/commentisfree/2013/aug/23/surveillance-state-debate-goes-on
"Spies spy! Who knew?" Thus the world-weary shrug
from too many people who ought to know better over the revelations deriving
from the material leaked by Edward Snowden about what goes on inside the west's
major intelligence agencies in 2013. We have all read our Le Carré, they sigh.
We spy on them, they spy on us. Except in fiction, it must remain a secret
world. The secrecy has to remain near-absolute because our national security
depends on it. The best way for the state to ensure such secrecy is to have an
armoury of criminal and civil laws − backed by punitive sanctions − to deter
any leakages.
This used to work. But the nature of spying has changed:
this much we have learned from Mr Snowden. What was once highly targeted has
now become virtually universal. The evident ambition is to put entire
populations under some form of surveillance. The faceless intelligence masters
may say they are still searching for needles, but first they want the entire
haystack. And thus countless millions of entirely innocent (in every sense)
citizens are potentially being monitored. Their phone calls, web searches,
texts and emails are routinely intercepted, collected, stored and subjected to
analysis.
Did the governments involved ever stop to think about the
notion of consent? Did any engineer, spy chief, minister, congressman or
president ever wonder whether such a dramatic change in the contract between
state and citizen required some form of debate?
Secrecy and openness
Thanks to Mr Snowden they have now got a debate − one that
is rippling around the world. President Barack Obama says he welcomes that
debate. That much is encouraging, even if it seems unlikely to be true because
it is not going to be a comfortable debate for any government − nor for those
in intelligence, nor for anyone running a major technology or
telecommunications company. The world was simpler when the law could be used to
prevent any meaningful and informed discussion of what was involved. The laws
crafted before and during the first world war (the Espionage Act in the US, the
Official Secrets Act in the UK) saw to that.
Secrecy and openness must collide. Governments and spies
will place the greater emphasis on security: that is inevitable. Individuals
who treasure free speech, an unfettered press, the capacity for dissent, or an
individual's rights to privacy or protection against the state, will have
equal, or greater, concerns.
It is obvious that virtually anyone with a digital life −
any user of Google or Verizon or BT or Facebook or Skype − is entitled to know
quite how much privacy they can reasonably expect. This is the coming debate.
Who will hold the debate, and how is it to be informed? To
date, there has been a vigorous discussion on these matters in the US and
European legislatures and media. In the UK, the number of MPs or peers who have
said anything at all is tiny. Much legal oversight of intelligence matters
happens in closed courts. Parliamentary oversight is a similarly shadowy
affair. In the UK, Sir Malcolm Rifkind, who is supposed to be a kind of
regulator, too often sounds like a cheerleader. In the US, the same can alas be
said of Senator Dianne Feinstein, who heads the Senate intelligence committee.
Responsible reporting
What role does a free press have in assisting and informing
this debate? In late May, Mr Snowden gave this newspaper a volume of documents
from his role as one of 850,000 intelligence employees cleared to read and
analyse top-secret material. It is difficult to imagine any editor in the free
world who would have destroyed this material unread, or handed it back,
unanalysed, to the spy agencies or the government. The Guardian did what we
hope any news organisation would do − patiently analysed and responsibly
reported on some of the material we have read in order to inform the necessary
public debate.
Some time after our first disclosures we were contacted by
the cabinet secretary, who said he spoke on behalf of the prime minister. He
acknowledged that we had behaved responsibly, expressed concerns about the
security of the material we held and requested the return or destruction of the
documents. We explained that complying with the request would destroy our
ability to report. At this stage there was no threat of law, but nevertheless
we took the precaution of sharing some of the material with news organisations
in America, where we consider there to be more robust protections for serious
journalism of public importance.
Some weeks later the tone of these and other discussions
changed. There was, by mid-July, an explicit threat that the government would,
after all, seek to stop the Guardian's work and prevent publication of further
material by legal means. To have resisted such action would have involved
handing over ultimate control of the material to a judge and could have meant
that no stories could have been published for many months, if at all. The first
amendment of the American constitution guarantees its press protections of
which British editors can only dream. For more than 40 years − since the
publication of the so-called Pentagon papers in 1971 − it has been accepted
that the state will not succeed in trying to obtain prior restraint of the
press. So we will in future report this story from New York. We have shared
some material with, and will collaborate with, the New York Times.
It is, we believe, inconceivable that the US government
would try to obtain, or the US court grant, an injunction against publication
by the NYT. The US attorney general has recently given an assurance that he
will not prosecute any journalist "for doing his or her job". So the
debate about the mass collection of data on populations, the links between the
state, the intelligence services and large corporations, and the uses and
limits of oversight can continue.
Meanwhile in the UK, the police − with the apparent
knowledge of the government − misused a law designed to combat terrorism to
detain a member of the Guardian's team for nine hours and to confiscate his
material. The former lord chancellor, Lord Falconer, has confirmed that there
was no intention that the 2000 Terrorism Act should be used against people like
David Miranda, the partner of the Guardian columnist Glenn Greenwald. "The
state may wish that journalists would not publish sensitive material," he
wrote in these columns last week, "but it is up to journalists, not the
state, to decide where to draw the line."
Civil liberties and security
These are words that should be heeded by the British
government official who told us that the Guardian had "had our
debate" and that there was no "need" to write any more. It is
not the role of politicians or civil servants to determine the limits of public
discussion. Nor should the debate be circumscribed by attempting to criminalise
the act of journalism − without which, in this instance, there could be no
debate.
Citizens of free countries are entitled to protect their
privacy against the state. The state has a duty to protect free speech as well
as security. Fundamental rights, as we say, collide. Journalists have a duty to
inform and facilitate a debate and to help test the consent of people about the
nature of any trade-offs between civil liberties and security. A democratic
government should seek to protect and nourish that debate, not threaten it or
stamp it out.
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