Government Background Checks for Security Clearance Now in Question

In 2011, the government contractor USIS performed a background check on Edward Snowden, the whistleblower on the NSA scandal.  It was presumably this background check that gave Snowden high-level clearance. According to its website, “USIS is the leader in providing background investigations to the federal government. With our highly experienced team of investigators, we mitigate risk with accurate in-depth investigations in a range of areas.”

Bloomberg news reports that USIS has been under investigation since 2011 for various fraud related issues. But at a senate hearing following the leak, when Senator Jon Tester (D-Mont.) asked whether there were any concerns about the USIS’s background check on Snowden, Patrick Mcfarland, the U.S. Office of Personnel Management’s inspector general, replied, “yes, we do believe that there may be some problems.”

This kind of breach of duty by both he Office of Personnell and USIS is especially disconcerting with recent reports that the NSA has been authorized to keep copies of intercepted communications from or about US citizens if the material contains significant intelligence or evidence of crimes.  So despite the Obama’s reassurance that this intelligence will not be used against US citizens, it seems likely that it can and will be used against US citizens if it hasn’t already been.

To sum it up, we’re left with a government that is storing and collecting mass quantities of information that can potentially be used against US citizens, and is accessible by approximately 500,000 contractors who might not have been given the most thorough background checks.  With the amount of classified material that the government currently holds, this should concern even those who support the NSA’s surveillance programs.

Alison Frimmel, Research Fellow
Center for Policy and Research

UPDATE: NSA Whistleblower Comes Forward with More Accusations

Since The Guardian broke the NSA surveillance story twelve days ago, much information has come to light about both the PRISM program and Edward Snowden, the former CIA employee and whistleblower.  In those twelve days we have learned that the NSA has secretly been collecting metadata from telephone companies in an effort to detect patterns that could undermine terrorist plots against the United States.  On top of that, we learned that the government is in the middle of constructing data collection centers that will store telephone and Internet records with the same aim of preventing terrorism.  The ACLU has already announced plans to sue the Obama administration over the constitutionality of the NSA’s activities.  It seems like something new has come out each day, and that the scandal goes deeper than anyone would have imagined.  We don’t know what else might come to light at this point.

In fact, we learned even more this weekend, and this new information might be the most damning part of the story.  Snowden uncovered documents that claim that since 2009, the U.S. and British government have been eavesdropping on phone calls and computer-based communication between foreign diplomats at G20 summits, most notably the 2009 summit in London.  The accusation included claims that fake Internet cafes were set up by the British government in London specifically for the purpose or monitoring diplomatic communications.  It appears that the NSA and its British counterparts GCHQ and MI6 shared information on these communications.

Accusations of spying and surveillance at international conferences are not new, but this is one of the first instances where it has been backed by government documents of this nature.  The documents showed that the HCHQ had the ability to hack into Blackberries and other smartphones, and that information gathered from foreign diplomats was passed along to government ministers.  We don’t know what information was gathered from these surveillance programs, but it would probably be safe to say that this story will not help build trust amongst G20 nations.  Great Britain is in a particularly precarious position as another G8 summit began earlier today in neighboring Ireland.  It’s safe to say that this will add tension to a conference that was already set to discuss government transparency issues.

In regard to the NSA’s surveillance scandal, government officials are still running damage control and defending the use of metadata collection as a form of counterterrorism.  On Saturday, top intelligence officials claimed that the programs had thwarted terrorist attacks in 20 countries in recent years.  They also stated that any data collected is destroyed after five years, and that the programs are not nearly as sweeping as critics say.  The claims probably won’t do much to calm these critics, as the government’s credibility is rather questionable at the moment.  On top of that, the efficiency of tactics used by the NSA is still being questioned.  If they really led to 20 foiled terrorist attacks, why can’t experts agree that they are worthwhile?  This may be the biggest problem with government secrecy.  We can’t believe the government without proof, but the government is still protecting whatever proof may or may not exist.  The chances of anyone taking the NSA’s word for it as this point are slim to none.

With that out of the way, I’d like to talk about Edward Snowden.  Here’s the interview he did with The Guardian last week.  He’s a 29 year-old former CIA technical assistant and employee of Booz Allen Hamilton, a government defense contractor, and he has proven to be just as polarizing as the story he uncovered.  Some are calling him a hero for uncovering a scandal that reached the presidency.  These people claim that he has taken a stand for our constitutional rights and deserves a great deal of credit for blowing the whistle on shady government action.  Others claim that he has seriously jeopardized our national security and deserves to be punished for treason.  His credibility has been questioned, but the NSA has admitted to the PRISM program and he has provided documents that support his accusations of spying at the G20 summits.  Regardless of which stance you take, it’s clear that he has violated a number of federal laws and regulations.  So why is he still a free man?

Snowden is currently in Hong Kong, presumably to escape federal prosecutions for releasing this information to the media.  Yes, that’s right, the whistleblower is currently hiding out in the shining beacon of freedom and free speech that is China.  Some members of the media have speculated that he is in cahoots with the Chinese government and may be selling them government secrets on top of releasing information to the media.  After all, he certainly has access to sensitive information that China would love to have, especially given the strained relationship between the U.S. and China.  But that relationship may also play another role in his decision to flee to Hong Kong.  When it’s all said and done, how likely is China hand Snowden over to the U.S. for prosecution?  Probably not very likely.   He has information that they want, and he has caused a great deal of turmoil for a government that the Chinese have been competing with for a long time.  He also stated in his interview with The Guardian that he does not expect to see home again.  At least for the foreseeable future, it doesn’t look like Snowden will have to answer to the U.S. for his actions, which could be either a good thing or a bad thing depending on how you look at it.

Either way, Edward Snowden has uncovered a story that does not seem to be going away.  New information comes to light daily, and the scandal is becoming more and more serious.  On top of attacking the Obama administration and the NSA, he has now brought the British government into the mix.  Whether you regard him as a hero or a moneygrubber, he has seemingly found a safe haven in China and we probably haven’t heard the last of his accusations.

Chris Whitten, Research Fellow
Center for Policy and Research

Bluffdale, UT – Home of the NSA Data Center

Outside Salt Lake City, nestled on the outskirts of Bluffdale, lies the Utah Data Center, the new home for the NSA’s expanding information stockpile. The building, taking two years to construct and costing $1.7 billion, will soon host supercomputers meant to store data from emails, phone calls, Google searches, and more. By September, the Center will employ approximately 200 technicians and will be the center for the NSA’s cloud-based data.

The NSA claims it will not illegally eavesdrop on Americans, but has been vague beyond that. Some experts say the center will store data; others claim the center to have the capacity to analyze and break codes, permitting endless eavesdropping.

So, what is the purpose of this new center, and why are we just now paying attention to it? Reports and concerns regarding the Data Center aren’t new. James Bamford reported on it back in March 2012 for Wired Magazine. Quoting an unidentified senior intelligence official who at the time was involved with the program, the Center “is more than just a data center” and “is critical for breaking codes,” as much of the data that the center will handle – financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications – is heavily encrypted. It is the role of these super computers to unencrypt the information. What will then come of this unencrypted, for now, can only be left to the imagination.

Putting the copious legal issues aside, technological and security issues and complications with this data storage center are easily foreseeable. NSA chief General Keith Alexander stated last month that we are vulnerable to attacks similar to those that destroyed data on tens of thousands of computers in Saudi Arabia and South Korea this past year. On Wednesday he stated, “On a scale of one to 10, with 10 being strongly defended, our critical infrastructure’s preparedness to withstand a destructive cyber attack is about a three based on my experience.” I guess it’s a good thing, then, that we are now cataloguing and storing copious amounts of private information in one centralized location. (Yes, that was sarcasm).

While much of the NSA surveillance remains unclear, one thing is for sure: Big Brother is listening. More on the NSA to come.

Alexandra Kutner, Research Fellow
Center for Policy and Research

ACLU Sues Obama Administration over NSA Surveillance

Last week, The Guardian reported that under Section 215 of the Patriot Act, the NSA has been acquiring the metadata for every phone call (wireless and landline) made or received by customers of Verizon Business Network on an ongoing basis. The government confirmed that an order was issued by Foreign Intelligence Surveillance Court (FISC) requiring Verizon business Network to turn over metadata about the calls made by each of its subscribers over the 3 month period ending on July 19, 2013.

The ACLU is a non-profit group that has historically fought to protect individual freedoms both implicit and explicit in our constitution—freedom of speech, equality, due process, privacy etc. So it’s no surprise that the ACLU, a current customer of the Verizon Business Network, and New York ACLU, a former customer, filed suit against the Obama Administration claiming that the government’s surveillance under Section 215 is violative of the First and Fourth Amendments because it allows the government sensitive and privileged information about both their work and clients.

It is the ACLU’s contention that this government surveillance of phone calls can be used to identify those who contact plaintiffs for legal assistance or to report human rights or civil liberties violations. In the specific context for which the Patriot Act was enacted this is particularly problematic as the ACLU has in the past represented alleged terrorists (see Hamdi v. Rumsfeld). So it’s pretty clear that the government’s surveillance of phone calls of Verizon business Network customers has the potential to frustrate the ACLU’s goals of promoting and protecting individual liberties of its clients.

Alison Frimmel, Research Fellow
Center for Policy and Research

Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

NSA Phone Surveillance Scandal Sparks Different Reactions

On Wednesday, The Guardian released a story detailing how the National Security Agency obtained a secret court order compelling telephone giant Verizon Wireless to hand over phone records detailing all domestic calls made by its customers.  Specifically, the order, signed by a federal judge on April 25^th, gave the NSA unlimited authority to collect phone numbers, location data, time and duration of calls, and other unique identifying data until July 19^th.  As the article points out, the court order was unusual in that it targeted such a wide range of people.  Normally, this type of court order would be limited to an individual or a small group of people.

Now, I would venture to say that when most Americans first heard about this story, they envisioned a government agent sitting in a van with headphones on, listening to their individual phone calls.  However, as a follow-up article by The Washington Post explains, this is probably not the case.  Information obtained regarding the court order made no actual mention of audio recordings.  Although it is not out of the question that the NSA may have other programs aimed at obtaining audio files, they would not be able to acquire them under this order.  It appears that the NSA is only seeking paper and electronic records at this point.

But why would the NSA want these phone records?  Although the reasoning behind the court order is largely unknown at this point, the White House responded quickly by claiming that this was an anti-terrorism move.  Particularly, the NSA is probably seeking out patterns in the records that could reveal possible terrorist plots against the United States.  Even if this is the case, the methods the NSA uses to find these patterns have not been proven and have actually been questioned by experts in recent years.

The story has already sparked a great deal of outrage among the American public.  We have a high expectation of privacy and tend to think that we are immune to this type of surveillance, especially when it has not been proven to be effective.  But since specific details are still being withheld, we can’t be sure whether the NSA’s program is actually constitutional.  Putting that aside, there are a few different ways to look at the situation.  Like I said before, we tend to place a high value on privacy in the U.S.  The idea that the government can monitor our phone calls without notice of permission is unsettling to most, and understandably so.  Even if the government is not actively listening to our phone calls, it’s hard to say what else they ARE monitoring.  Prior to the enactment of the Patriot Act, this kind of surveillance would have been unthinkable.

On the other hand, some Americans are ok with the idea of the government monitoring private phone calls.  The program even received some support in Congress.  Senator Lindsey Graham defended the NSA’s program on Fox News, stating that it was a necessary step toward thwarting “homegrown terrorism.”  There are undoubtedly some Americans who agree and are ok with trading some amount of privacy for increased national security.  In the post-9/11 era, this is also understandable.  After all, what does the average American have to worry about if they have nothing to hide?  It’s not like the government has released the actual records to the public.  This might be true, and that argument might hold water, but the fact is that we don’t know where it stops.  Just to reiterate, specifics regarding the program are still unknown, and the NSA may have place self-imposed limitations on their surveillance, but we just won’t know until more details are released.  That’s the part that makes so many Americans uneasy.

Until then, we again have to ask ourselves a question that been asked over and over for the past decade:  What amount of privacy and liberty are we willing to give up in the name of national security?

Chris Whitten, Research Fellow
Center for Policy and Research