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PRISM: Why the “directly and unilaterally” mistake matters.

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My post about how a central claim of the PRISM story turns out not to be true [1] has drawn a wide range of comments. There’s one particular kind of comment I’d like to address here: the idea that, even if what I said was true, it was a mere technical detail and is not important in the larger story. (Here’s one such response [2].)

If the original claim about PRISM had been true, it would have had major implications for how we understand power and the nature of our political world.

The idea that the importance of a fact (or an error) would correlate to the number and familiarity of the words required to explain it is wrong. Just because life would be easier for reporters and readers if that were the case doesn’t make it the case. Sometimes, a thing is important even though it requires new words or concepts in order to be explained. This is one of those times. The number of syllables involved in causing a misunderstanding has no relationship to the significance of that misunderstanding.

Remember George W. Bush’s famous 16 words [3]? “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Those were just 16 words. The importance of the lie is unrelated to its length.

Greenwald and MacAskill did not lie. They simply misunderstood something. But what they misunderstood was very, very important. The issue in the PRISM reporting apparently arose because Greenwald and MacAskill misunderstood the meaning of this label on an NSA slide:

“Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple”

When the leaks first appeared, only two things really stood out as news, especially to the tech community — news in the sense of being something we fundamentally didn’t know before: the massive scale of phone call logs collection, and the claim that the NSA could “directly and unilaterally seize the communications off the companies’ servers” (referring to online services companies, not phone companies).

The latter claim about “directly and unilaterally” seizing communications from company servers was the more shocking one. This is partly because it was about data, not just metadata. But it was also because it meant that people we thought we knew — in many cases, people we’d worked with — had been hiding something big, something that, unlike (say) receiving and acting on National Security Letters, we didn’t think the law required them to hide and that we would not expect could be successfully hidden for long. It meant that not only did the system not work the way we thought it worked, it wasn’t even built the way we thought it was built. The moment I first read that quote, I straightened in my chair. If this is true, I thought, then we’re living in a very different place from the one we imagined.

The quote is from Glenn Greenwald’s and Ewan MacAskill’s original article [4] in The Guardian on June 6th:

…defenders of the FAA argued that a significant check on abuse would be the NSA’s inability to obtain electronic communications without the consent of the telecom and internet companies that control the data. But the Prism program renders that consent unnecessary, as it allows the agency to directly and unilaterally seize the communications off the companies’ servers.

Looking at that text, what would you think it means? (Go ahead and read it in context [4] in the original article, just to be sure.)

The most natural interpretation of “directly” and “unilaterally” — really, the only interpretation the authors could expect, given the context — is that the NSA could get anything it wants directly from the servers of major online services companies, without asking the company first (hence “unilaterally”). In other words, the companies’ lawyers don’t have a chance to review the request and push back. It means a monopolar world in which even commercial services are essentially an arm of the government, instead of a multipolar world where, even though the government may be heavy-handed, there are still competing pressures, negotiations, and compromises — a world where the possibility of saying “no” still exists.

The scarier, monopolar interpretation was the one reacted to by the very next person the article quotes, Jameel Jaffer, the director of the ACLU’s Center for Democracy:

“It’s shocking enough just that the NSA is asking companies to do this… The NSA is part of the military. The military has been granted unprecedented access to civilian communications.

This is unprecedented militarisation of domestic communications infrastructure. That’s profoundly troubling to anyone who is concerned about that separation.”

Glenn Greenwald and Ewen MacAskill say nothing to correct Jaffer’s interpretation. As the authors of the piece, and therefore the people who chose to quote Jaffer’s reaction in the first place, one can only assume that the reason they did not correct Jaffer’s interpretation is that they did not think Jaffer misunderstood.

Eventually, I, along with many others looking at the primary source materials and other sources, realized that Greenwald and MacAskill had overstated this part of the case — the NSA does not have direct, unilateral access. It doesn’t have a secret route around company lawyers. It doesn’t have engineers planted in senior positions in every major online service company (or at least if it does, the documents leaked so far do not contain evidence of that).

Instead, what’s going on is, more or less, what we thought was going on, just with more abuse and less restraint on the government side. That’s serious, but it’s comprehensibly serious, not “Oops, I guess we live in the shadowy power of the Deep State after all” serious. The true situation is one that can still respond to popular pressure and political dissatisfaction.

I think it’s clear by now that what I (and Mark Jaquith [5] and Rick Perlstein [6]) wrote is right as far as the facts are concerned. For some other analyses that have come out since then supporting the claim that there is not direct and unilateral access, see Ashkan Soltani [7], and Declan McCullagh [8] at CNET, and Hunter Walker’s piece [9] at Talking Points Memo, especially the quote from Ben Adida of Mozilla, and the New York Times [10] (despite the misleading title on the piece, its content confirms the less alarmist interpretation).

So why do I care?

Adapting a comment [11] I made in reply to a reader of the earlier post:

The big picture is about understanding the true dynamics of the world we live in, so we can decide how to act and what is most important to focus on. The picture Greenwald originally painted is, more or less, one of government-dominated oligopoly in which basically all the big players sat down at the same table and agreed to play by the NSA’s rules. I don’t think that was an accurate picture. I see instead multiple power bases, with some degree of internal dissent within each organization (including even the NSA and the FISA courts, but much more so within the companies), and on important issues even open dissent between actors. Yes, there’s a lot of coercion and compromise, and there is no doubt that some companies hand over more than they should without asking enough questions — but they don’t all do that. Of course we shouldn’t be happy that the average person’s most immediate choice is which big protector(s) to grant conditional trust to. But as I said in response to someone else in a blog comment, it’s not like Russia and North Korea are the same thing (and the U.S. is neither). There are meaningful differences among surveillance states, and understanding the kind you live in is important if you’re trying to figure out which risks to take for what goals.

This is a more complex picture than the one Greenwald painted, but if it is a truer one, then the paths available for resisting a surveillance state are quite different than they would be in a more monolithic situation. Do you take to the streets, or do you file lawsuits? If the latter, then against whom, a company or the government? (I don’t mean to suggest these are the only options; they’re just examples.)

Hence the importance of people understanding that the government does not do unmediated “direct” and “unilateral” collection from the servers of all major private-sector online service companies. How realistic was that idea ever? What U.S. company, that originated as a mass-market services company and not as a government contractor, would agree to give government IT staff unfettered access to its live-data servers? The business risk would be incredible, the risk of public embarrassment incredible… the proposition just doesn’t make sense to me. It never passed the smell test.

People in the U.S. following this story are trying to figure out what kind of country they live in, because after all, there are countries where the companies wouldn’t have a choice about granting that kind of access. If Glenn Greenwald succeeds in persuading U.S. readers that they live in one of those countries, and he is wrong, then he will unintentionally help to erode the feeling of collective empowerment and of individual rights that is crucial for resisting further encroachment.

That’s why I care.

Addenda: One critic’s claim [12] that I “repackaged” Mark Jaquith’s (very fine) post isn’t true. I wrote the bulk of my post before finding out about Jaquith’s; when I saw Jaquith’s, I thought it expressed the problem very well and I decided to point to it (and restructured my post accordingly). Also, though I am a Fellow at the New America Foundation, I had no awareness (until some commenters on my original post mentioned it) that NAF receives Gates or Schmidt money. Anyway, the funding for my work with NAF doesn’t come from those sources. Though the place the funding does come from won’t assuage those critics, since it’s the Open Internet Tools Project, which is largely funded by the U.S. State Department. To reiterate: the views expressed on this blog are my own and are not influenced by nor attributable to the New America Foundation, the Open Internet Tools Project, or any other organization. Finally, Mark Jaquith has updated his post [5] to account for Greenwald’s response. I think Mark’s analysis of that response (search for the phrase “Update: Greenwald response”) is very good, and have nothing to add except a big +1.