REVEALED: GCHQ’s BEYOND TOP SECRET Middle Eastern INTERNET SPY BASE

Exclusive Above-top-secret details of Britain’s covert surveillance programme – including the location of a clandestine British base tapping undersea cables in the Middle East – have so far remained secret, despite being leaked by fugitive NSA sysadmin Edward Snowden. Government pressure has meant that some media organisations, despite being in possession of these facts, have declined to reveal them. Today, however, the Register publishes them in full.

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NSA phone surveillance program likely unconstitutional, federal judge rules

A federal judge in Washington ruled on Monday that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by the whistleblower Edward Snowden.

Judge Richard Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was “almost Orwellian” in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be “aghast” at the scope of the agency’s collection of Americans’ communications data.

The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the supreme court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.

The case was brought by Larry Klayman, a conservative lawyer, and Charles Strange, father of a cryptologist killed in Afghanistan when his helicopter was shot down in 2011. His son worked for the NSA and carried out support work for Navy Seal Team Six, the elite force that killed Osama bin Laden.

In Monday’s ruling, the judge concluded that the pair’s constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, Leon put the ruling on hold, pending an appeal by the government.

Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,” he wrote.

“Given the limited record before me at this point in the litigation – most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics – I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional.

“Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote.

Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was “indiscriminate” and “arbitrary” in its scope. “The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” he wrote, referring to the year in which the US supreme court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program.

Snowden welcomes ruling

In a statement, Snowden said the ruling justified his disclosures. “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” he said in comments released through Glenn Greenwald, the former Guardian journalist who received leaked documents from Snowden.

“Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

Senator Mark Udall, a leading critic of the dragnet collection, welcomed the judgment. “The ruling underscores what I have argued for years: [that] the bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the US constitution and has failed to make us safer,” said Udall, a Democrat.

Jameel Jaffer, the deputy legal director of the ACLU, praised what he called Leon’s “thoughtful” ruling: “This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the constitution.”

At the White House, spokesman Jay Carney said he had no comment on the on the case, saying he had not heard of the decision when the press briefing started and referred reporters to the Justice Department for reaction.

“We’ve seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time,” said Justice Department spokesman Andrew Ames.

News of the ruling came as the White House revealed that its review into NSA activities has made more than 40 separate recommendations in a report received by Barack Obama on Friday. Carney said the president would be reviewing the group’s conclusions before making their findings public. “Over the next several weeks we will be reviewing the review group’s report and its more than 40 recommendations as we consider the path forward, including sorting through which recommendations we will implement and which might require further study and which will choose not to pursue,” Carney said.

“We expect the overall internal review to be completed in January. After that, the president will deliver remarks to outline the outcome of our work and at that time we will make public the review group’s full report and other conclusions of our work.”

The White House also poured cold water on suggestions by an NSA official that whistleblower Edward Snowden could be offered an amnesty by the US in exchange for returning documents. “Our position has not changed on that matter – at all,” said Carney. “Mr Snowden has been accused of leaking classified information and he faces felony charges in the US. He should be returned to the United States as soon as possible, where he will be accorded full due process.”

Asked about the NSA official’s suggestion, the White House added: “He was expressing his personal opinion; these decisions are made by the Department of Justice. There has been no change in our position.”

In his ruling, Judge Leon expressly rejected the government’s claim that the 1979 supreme court case, Smith v Maryland, which the NSA and the Obama administration often cite to argue that there is no reasonable expectation of privacy over metadata, applies in the NSA’s bulk-metadata collection. The mass surveillance program differs so much from the one-time request dealt with by the 1979 case that it was of “little value” in assessing whether the metadata dragnet constitutes a fourth amendment search.

‘Defying common sense’

In a decision likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.

“The government asks me to find that plaintiffs lack standing based on the theoretical possibility that NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function,” Leon wrote. “Candor of this type defies common sense and does not exactly inspire confidence!”

Leon also struck a blow for judicial review of government surveillance practices even when Congress explicitly restricts the ability of citizens to sue for relief. “While Congress has great latitude to create statutory schemes like Fisa,” he wrote, referring to the seminal 1978 surveillance law, “it may not hang a cloak of secrecy over the constitution.”

The case will almost certainly be heard next by the US court of appeals for the District of Columbia circuit, recently bolstered with two new liberal justices following a change in Senate rules relating to confirmation votes. Were the appeal court to uphold the ruling, the Department of Justice would seek another stay, pending a final verdict from the US supreme court or a “bench” decision by all justices on the appeal court.

In his ruling on Monday, Judge Leon predicted the process would take six months. He urged the government to take that time to prepare for an eventual defeat. “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld,” wrote Leon in his opinion.

“Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”

The three DC appeal court judges who will first hear the case are chosen are random from the bench, currently comprising 10 justices.

However, it may prove a test of new Obama appointees, Patricia Millett and Nina Pillard, who were confirmed by the Senate last week in the face of bitter opposition from Republicans who said the administration was trying to “pack the court” with like-minded justices. A third, Robert Leon Wilkins, awaits confirmation by the Senate.

Though known as a straight-shooter when it comes to interpreting the law, Pillard, a Georgetown law professor, is married to prominent NSA critic and academic David Cole, who has argued that privacy is a “human right”.

Military secretly developed mobile app games that spied on users, report says

The NSA, FBI, and CIA are infiltrating and spying on multi-player role playing games such as World of Warcraft and Second Life, according to an NSA document leaked by Edward Snowden and published jointly by The Guardian, New York Times, and ProPublica.

According to the reports, the various intelligence agencies have so many undercover players inside these games that they established a “deconfliction” group to ensure that they weren’t spying on one another or interfering with the other agents’ missions. And true to NSA form, there’s zero evidence these spy games are worthwhile for counterterrorism purposes. The NSA document describing the efforts to spy on the private communications and activities of gamers does not include even one instance of the programs producing useful information for spies.

And it isn’t just World of Warcraft or Second Life. The NYT report cites anonymous sources who claim the Department of Defense has for years worked secretly with mobile app developers to create games that serve as intelligence collection streams for the NSA. We’ve known for some time that app developers often siphon sensitive information from users, who are kept in the dark about what exactly that free flashlight is doing on their phone. But now we have reason to believe the government is in on the app snooping:

The Pentagon’s Special Operations Command in 2006 and 2007 worked with several foreign companies — including an obscure digital media business based in Prague — to build games that could be downloaded to mobile phones, according to people involved in the effort. They said the games, which were not identified as creations of the Pentagon, were then used as vehicles for intelligence agencies to collect information about the users.

And it wouldn’t be a real spy story if the billion dollar global spy industry didn’t get a piece of the action. Unsurprisingly, war and intelligence contractors took notice of the government’s interest in infiltrating and spying on gaming networks.

Eager to cash in on the government’s growing interest in virtual worlds, several large private contractors have spent years pitching their services to American intelligence agencies. In one 66-page document from 2007, part of the cache released by Mr. Snowden, the contracting giant SAIC promoted its ability to support “intelligence collection in the game space,” and warned that online games could be used by militant groups to recruit followers and could provide “terrorist organizations with a powerful platform to reach core target audiences.”

It is unclear whether SAIC received a contract based on this proposal, but one former SAIC employee said that the company at one point had a lucrative contract with the C.I.A. for work that included monitoring the Internet for militant activity. An SAIC spokeswoman declined to comment.

In spring 2009, academics and defense contractors gathered at the Marriott at Washington Dulles International Airport to present proposals for a government study about how players’ behavior in a game like World of Warcraft might be linked to their real-world identities. “We were told it was highly likely that persons of interest were using virtual spaces to communicate or coordinate,” said Dmitri Williams, a professor at the University of Southern California who received grant money as part of the program.

After the conference, both SAIC and Lockheed Martin won contracts worth several million dollars, administered by an office within the intelligence community that finances research projects.

Did the government get any measurable intelligence benefit from those millions of dollars it gave to private corporations for research into players’ behavior in online games? Not exactly.

It is not clear how useful such research might be. A group at the Palo Alto Research Center, for example, produced a government-funded study of World of Warcraft that found “younger players and male players preferring competitive, hack-and-slash activities, and older and female players preferring noncombat activities,” such as exploring the virtual world. A group from the nonprofit SRI International, meanwhile, found that players under age 18 often used all capital letters both in chat messages and in their avatar names.

Those involved in the project were told little by their government patrons. According to Nick Yee, a Palo Alto researcher who worked on the effort, “We were specifically asked not to speculate on the government’s motivations and goals.”

While it may seem silly that the NSA, FBI and CIA are all up in your virtual world, the fact that the government is investing significant time, money, and energy into unmasking and understanding players is not a game.

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’

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.

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Most Americans see NSA leaker Snowden as whistle-blower, not traitor

More Americans see National Security Agency leaker Edward Snowden as a whistle-blower (55 percent), than a traitor (34 percent), according to a poll released Thursday shortly after the former NSA contractor reportedly secured asylum in Russia.

The Quinnipiac University national poll, which had an error margin for plus or minus 2.6 percentage points, found the public mood unchanged from a similar survey on July 10.

“Most American voters think positively of Edward Snowden, but that was before he accepted asylum in Russia,” said Peter Brown, assistant director of the Quinnipiac University Polling Institute.

By a 56 percent to 51 percent ratio, more Democrats than Republicans said Snowden was a whistle-blower. Slightly more Republicans than Democrats called him a traitor, 38 percent to 36 percent.

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