The world responded with astonishment to the Washington Post’s scoop last Thursday regarding the National Security Agency’s (NSA) PRISM program, under which the agency can gain access to data held by large U.S. Internet firms. The Post story, along with a similar scoop in The Guardian, provided details on just how the NSA program works, down to the dates when info-collection began for each of the firms.
Such detail didn’t furnish a great public service, argue Robert Chesney and Benjamin Wittes in a New Republic piece. The authors contend that there’s scant news value in the fine points of the NSA’s surveillance of foreigners. “While jarring to read about the powerful tools PRISM gives the government to capture communications in real time,” they write, “the story is actually not at all surprising. It, or something very much like it, is exactly what the law and its history would have led a reasonable observer to expect the government and industry to be doing together.”
The disclosures, they say, help the enemies of the United States identify the Internet services that they should avoid. If, that is, they weren’t already avoiding them. Guardian journalist Glenn Greenwald struck that theme in an interview today with CNN’s Jake Tapper:
Terrorists already know that the U.S. government tries to surveil their communications. Nothing that we revealed helps, quote, unquote, “the terrorists.” All we did was tell our fellow citizens in the United States and around the world the extent and capabilities of how vast this surveillance state is and the reasons why it needs scrutiny and — and accountability. And — and the only things we’ve damaged are the reputation of American political officials and not national security.
Yet the detailed depiction of PRISM, write Chesney and Wittes, spell trouble for the Internet companies, too. The news, they write, will:
[E]nsure that these companies face significant costs for their court-ordered cooperation. Yes, the [FISA Amendments Act] shields them from liability, but it hardly follows that they won’t be sued, and it most definitely does not follow that they bear no costs from protests, bad press, fearful customers, and—perhaps most significantly—investigations (with potential liablity) launched by other governments, particularly by the EU. These companies may have to continue cooperating at some level thanks to the FAA, but there is a spectrum of cooperation that runs from the eager to the grudging, and the exposure involved here is sure to move the needle significantly for at least some of these companies, not to mention for others who have not yet agreed to similar partnerships.
Perhaps the tech companies foresaw such misery, perhaps not. If so, it’s apparent that at least a few of them made no effort to dodge association with the stories on PRISM. When asked whether they’d asked the news outlets to keep their names out of the headlines, sources at Google, Facebook and Yahoo said they’d made no such request. “I can confirm that we did not ask to be excluded from the story,” says Jodi Seth, a spokeswoman for Facebook. “The simple answer is no,” says a Google source, and a Yahoo spokespeson expressed the same sentiment.
When asked about the critique that the PRISM story harmfully disclosed too much, Washington Post Executive Editor Martin Baron responded, “I’m sorry, I’m not going to respond everything everyone writes. They’re entitled to an opinion.” Greenwald didn’t respond to a request for comment.
Whether or not it’s not “surprising” that PRISM is operating as outlined in the Post and Guardian stories, it’s quite clear that its contours and breadth have surprised the American public. Perhaps that’s because during the time period that the FISA Amendments Act was under consideration in Congress in the summer of 2008, it didn’t precisely preoccupy the national media. A Nexis search of that stretch (mid-June through late July, 2008) yields plenty of stories from outlets like TelecomWeb policy, Ice Station Tango, 2 Political Junkies, d-day and the like — but a small-yet-far-from-overwhelming amount of attention from the mainstream media. In other words, it may well take a robust leak to get Americans to pay attention to the Fourth Amendment.