The recent leaks have shed light on one of the darkest corners of the U.S. government -- but when it comes to mass surveillance practices, clarity remains elusive
Last week saw revelations that the FBI and the National Security Agency have been collecting Americans’ phone records en masse and that the agencies have access to data from nine tech companies.
But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:
Has the NSA been collecting all Americans’ phone records, and for how long?
It’s not entirely clear.
The Guardian published a court order that directed a Verizon subsidiary to turn over phone metadata -- the time and duration of calls, as well as phone numbers and location data -- to the NSA “on an ongoing daily basis” for a three-month period. Citing unnamed sources, the Wall Street Journal reported the program also covers AT&T and Sprint and that it covers the majority of Americans. And Director of National Intelligence James Clapper himself acknowledged that the “collection” is “broad in scope.”
How long has the dragnet has existed? At least seven years, and maybe going back to 2001.
Senate Intelligence Committee chair Dianne Feinstein, D-Calif., and vice chair Saxby Chambliss, R-Ga., said last week that the NSA has been collecting the records going back to 2006. That’s the same year that USA Today revealed a similar-sounding mass collection of metadata, which the paper said had been taking place since 2001. The relationship between the program we got a glimpse of in the Verizon order and the one revealed by USA Today in 2006 is still not clear: USA Today described a program not authorized by warrants. The program detailed last week does have court approval.
What surveillance powers does the government believe it has under the Patriot Act?
The Verizon court order relies on Section 215 of the Patriot Act. That provision allows the FBI to ask the Foreign Intelligence Surveillance Court for a secret order requiring companies, like Verizon, to produce records – “any tangible things” – as part of a “foreign intelligence” or terrorism investigation. As with any law, exactly what the wording means is a matter for courts to decide. But the Foreign Intelligence Surveillance Court’s interpretation of Section 215 is secret.
As Harvard Law Professor Noah Feldman recently wrote, the details of that interpretation matter a lot: “Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant — which is to say, everything.”
In the case of the Verizon order -- signed by a judge who sits on the secret court and requiring the company to hand over “all call detail records" -- it appears that the court is allowing a broad interpretation of the Patriot Act. But we still don’t know the specifics.
Has the NSA’s massive collection of metadata thwarted any terrorist attacks?
It depends which senator you ask. And evidence that would help settle the matter is, yes, classified.
Sen. Mark Udall, D-Colo., told CNN on Sunday, “It's unclear to me that we've developed any intelligence through the metadata program that's led to the disruption of plots that we could [not] have developed through other data and other intelligence.”
He said he could not elaborate on his case “without further declassification.”
Sen. Feinstein told ABC that the collection of phone records described in the Verizon order had been “used” in the case of would-be New York subway bomber Najibullah Zazi. Later in the interview, Feinstein said she couldn’t disclose more because the information is classified. (It’s worth noting that there’s also evidence that old-fashioned police work helped solve the Zazi case — and that other reports suggest the Prism program, not the phone records, helped solve the case.)
How much information, and from whom, is the government sweeping up through Prism?
It’s not clear.
Intelligence director Clapper said in his declassified description that the government can’t get information using Prism unless there is an “appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.”
One thing we don’t know is how the government determines who is a “foreign target.” The Washington Post reported that NSA analysts use “search terms” to try to achieve “51 percent confidence” in a target’s “foreignness.” How do they do that? Unclear.
We’ve also never seen a court order related to Prism -- they are secret -- so we don’t know how broad they are. The Post reported that the court orders can be sweeping, and apply for up to a year. Though Google has maintained it has not "received blanket orders of the kind being discussed in the media."
So, how does Prism work?
In his statement Saturday, Clapper described Prism as a computer system that allows the government to collect “foreign intelligence information from electronic communication service providers under court supervision.”
That much seems clear. But the exact role of the tech companies is still murky.
Relying on a leaked PowerPoint presentation, the Washington Post originally described Prism as an FBI and NSA program to tap “directly into the central servers” of nine tech companies including Google and Facebook. Some of the companies denied giving the government “direct access” to their servers. In a later story, published Saturday, the newspaper cited unnamed intelligence sources saying that the description from the PowerPoint was technically inaccurate.
The Post quotes a classified NSA report saying that Prism allows “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” not the company servers themselves. So what does any of that mean? We don't know.
For more on mass surveillance in America, read our timeline of loosening laws and practices.
While Congress leader and MP Naveen Jindal had so far maintained distance from the coalgate scam, the CBI seems to think otherwise. The investigation agency had filed an FIR against Jindal and is conducting searches at 19 locations of JSPL in Delhi and Hyderabad. Does this signal changed equations in the Congress?
Jindal Steel & Power (JSPL) shares on Tuesday tumbled as much as by 24% in morning trade following a first information report (FIR) and subsequent searches at the 19 places related with the company by the Central Bureau of Investigation (CBI).
At 12.35pm, JSPL shares were trading 18% down at Rs219 on the BSE, while the 30-share benchmark index was 1.2% down at 19,212. Earlier, it touched an intra-day low of Rs202, which was 24% down than its closing price on Monday.
The CBI, which is investigation the coalgate scam, registered an FIR against JSPL and its chairman Naveen Jindal, who is also a member of Parliament (MP) from Congress party. In the FIR, the CBI has alleged that both the company and the MP misrepresented crucial information for receiving valuable coalfields from the government.
The filing of FIR and investigations against the MP from Kurukshetra and his company signal changed equations in the Congress party as Naveen Jindal was supposed to be close with party president Sonia Gandhi and its general secretary Rahul Gandhi. The two-time MP from Haryana is part of the “youth brigade” in the Lok Sabha.
The FIR against JSPL, part of the $17 billion diversified OP Jindal group, also mentions cheating and conspiracy as charges. The investigation agency had also named Dasari Narayan Rao, the former minister of state for coal, as an accused in the coalgate scam.
Besides, the MP and former minister, the CBI has named JSPL, Gagan Sponge and two other companies in the Coalgate scam case.
The CBI is carrying out searches at 19 places in Delhi and Hyderabad in connection with coalgate scam.
Revelations in September 2012 showed the involvement of Naveen Jindal and his company in the Coalgate scam. His company gained by making and selling power at high prices. The coal blocks allotted to Jindal Power (JPL) in 1998, during the NDA regime, were followed by a slew of allocations under the UPA, which have culminated in making the Jindal Group the largest beneficiary of coal block allocations. It has reserves of 2,580 million tonnes of coal, while the second largest beneficiary in the private sector has just 1,500 million tonnes. But despite having the cheapest coal, Jindal sold power at the highest prices—Rs3.85 per unit in 2011-2012, compared to Lanco’s Rs3.67 and NTPC's Rs2.20. The previous year, JPL had sold power at an even higher rate of Rs4.30 per unit. The combination of cheap coal and high power prices explains why Jindal posted Rs1,765 crore as profit, or 60% of its revenues, while Lanco made a profit of just Rs155 crore, just 12% of its revenues.
Last month, taking a strong stand against CBI for allowing interference in the coalgate scam report, the Supreme Court had called the investigating agency as “a caged parrot speaking in its master’s voice”.
The apex court also slammed Attorney General GE Vahanvati, former Additional Solicitor General Harin Raval and officials from the Prime Minister’s Office (PMO) and the coal ministry. “How on earth could the joint secretaries of the PMO and the coal ministry attend the meeting, see the report and suggest changes to it,” the court asked.
Earlier, in a nine-page affidavit submitted before the apex court, CBI director Ranjit Sinha admitted making changes in the ‘coalgate’ draft report on suggestions from Ashwani Kumar and the AG, but stated that it has neither altered the report nor shifted the focus of inquiries in any manner. “...heart of the CBI report was changed on the suggestions of government officials,” the court said.
In its nine-page affidavit, the CBI chief had given details of the meetings between the officials of the agency, the law minister, AG, then additional solicitor general Harin Raval and officials of the PMO and the coal ministry.
Last year in October, Jindal, the MP, had filed an FIR against Subhash Chandra, chairman of the Zee group, Punit Goenka, managing director of Zee, Sameer Ahluwalia and Sudhir Chaudhary, both editors and business heads of Zee Business channel. In the FIR, Jindal had said that Ahluwalia and Chaudhary demanded “certain advertisement commitments” worth several crores of rupees (Rs100 crore, according to media reports) for not broadcasting a story about the Jindal group's alleged involvement in the coal block allocations.
The Zee group, however, denied the allegations made by Jindal. According to news reports, Punit Goenka, managing director and chief executive, Zee Entertainment Enterprises had said, “This kind of allegation has happened in the past and may happen in the future. It doesn’t make any difference to us and we will stick to the truth. These are all pressure tactics.” Read: Zee News-Naveen Jindal episode: Real face of media exposed?
Earlier, Jindal instigated an initiative that led to a revision of the Flag Code of India which now grants every Indian citizen the right to fly the Flag of India (also known as the ‘Tiranga’) publicly with dignity and honour on all days of the year.
Despite order from the FAA, the PIO did not provide any information for 10 months. This made the appellant file his second appeal before the CIC, which directed the PIO to pay compensation. This is the 110th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) and chief manager of Delhi State Industrial and Infrastructure Development Corporation (DSIIDC), to compensate and facilitate inspection of relevant records by the appellant.
While giving this judgement on 10 August 2010, Shailesh Gandhi, the then Central Information Commissioner said, “It is very clear that the First Appellate Authority (FAA) had also ordered the information to the provided in 10 days and yet the appellant has been unnecessary harassed by having to file a second appeal with the Commission and coming for the hearing. In view of this the Commission awards a compensation of Rs2,000 to the appellant for the loss and detriment suffered as per Section 19(8)(b) of the Right to Information (RTI) Act.”
Delhi resident Rakesh Kumar Gupta, on 11 April 2009, sought information about a policy for allotment of plots in the New Industrial Area from the Public Information Officer (PIO) of the DSIIDC. Here is the information he sought under the RTI Act...
1. Inspection of the new policy in consideration for allotment of plots in the new industrial area. This includes units already registered with the Commissioner of Industries under relocation units whether plots were allotted (and cancelled due to non payment as per schedule) or not allotted at all.
2. List of the file number and records name related to all the points under Query no. 1 and whose custody records are kept with name, designations, phone number, email address, address, etc.
3. The inspection of WP(C) 4677/1985, IT IA NO 1206 IN WP(C) 4677/ 1985, 1A NO 22, 1204-5, 1224 IN WP(C) 4677/ 1985, WP(C) 88/2000, WP(C) 98/2000.
4. Copy of directions issued to DSIIDC on the basis of orders mentioned in point no. 3.
5. Copy of documents pointed out at the time of inspection.
6. The file number and records name related to all the points under Query no. 3 & 4 and whose custody records are kept with name, designations , phone number, email address, address, etc.
7. Inspection of all the records referred to in the above points.
The PIO did not provide any information. Gupta then filed his first appeal before the FAA. During the hearing, the FAA noted that it was amply clear that the information sought by the appellant has not been provided by the SPIO/JCI (Rel) in the industries department at the Government of National Capital Territory of Delhi (GNCTD) nor by the SF10/ Chief Manager (Rel) VK Garg in DSIIDC to whom it was transferred. “This situation is neither acceptable nor is as per the RTI Act. In fact, because of this transfer of RTI application by the SPIOs the appellant has been made to file this appeal before the First Appellate Authority. The contention of SPIO/JCI (Rel) JS Choudhry is correct only to the extent that information was not related to his branch but he should have ensured that the application is transferred to the concerned branch or SPIO who has got the sought information,” the FAA said.
While disposing the appeal, the FAA in his order on 9 June 2010, stated, “Since the appellant has not been furnished the information by SPIO/JCI (Relocation) in the Industries Department and SPIO/Chief Manager (Relocation) in DSIIDC, therefore, it would be appropriate that responsibility is east on the senior officer in the Industries Department as well as DSIIDC so that requisite information is now furnished by the concerned SPIOs. It is therefore directed that Additional Commissioner, Industries, and executive director in DSIIDC would respectively co-ordinate with the concerned SPIOs to whom his information pertains and ensure that the sought information is furnished to appellant within 10 days’ time. With these directions, the appeal is disposed of.”
However, despite the order from the FAA, the PIO did not provide any information. Gupta then approached the Commission with his second appeal.
During the hearing, Mr Gandhi, the then CIC, noted that the RTI application has been shuttling between the industries department and DSIIDC but nobody is willing to provide the information. “The FAA issued an order. But his direction for (providing information in) 10 days has been meaningless, since even after 10 months no information has been provided to the appellant and both departments had only told the appellant that they have no information,” Mr Gandhi observed.
The CIC said the two respondents, represented on behalf of PIOs of DSIIDC and industries department, who have come in the hearing plead complete ignorance. “It is not known whether any policy has been framed for allotment of industrial plots in 1,865 acres of land in Delhi. If no policy has been framed it would imply that decisions are being taken arbitrarily. Since the PIOs before the Commission plead ignorance and an earlier order by Dharmendra, the FAA, has also not been complied with the Commission suspects that there may not be any policy and PIOs may be unwilling to admit this,” the CIC said.
“In view of the fact that no officer appears to be knowing whether the policy exists the Commission directs the executive director of DSIIDC Sanjiv Ahuja to ensure that if a policy exists it should be sent to the appellant before 30 August 2010. If there is no policy this should be stated,” the Commission said in its order.
The appellant had also sought an inspection of the relevant files for the court cases in his RTI application. HC Puri who came on behalf of the PIO was innocently ignorant about the reasons why any information was not been provided to the appellant.
The Commission noted that officers who appear before the CIC must familiarize themselves with the subject matter of the RTI application before coming to the hearing since otherwise this was resulting in complete waste of public time and money. The CIC said, “The PIO MM Ahmed is directed to ensure that the appellant is given an inspection of the relevant records on 25 August 2010 from 11.00am onwards.”
While allowing the appeal, Mr Gandhi, also directed the PIO to ensure that the cheque for compensation of Rs2,000 is sent to the appellant (Gupta) before 15 September 2010 besides facilitating an inspection of relevant records by Gupta and also providing attested photocopies of the records free of cost up to 300 pages.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2010/001824/8889
Appeal No. CIC/SG/A/2010/001824
Appellant : Rakesh Kumar Gupta
Respondent : 1. MM Ahmed
Public Information Officer (HQ) & Chief Manager,
Government of N.C.T. of Delhi,
N-Block, Bombay Life Building,
Connaught Circus, Delhi.
2. RP Kukreti
Public Information Officer &
Dy. Commissioner (Industries)
Govt. of NCT of Delhi
Office of the Commissioner of Industries
Udyog Sadan, Plot No. 419
FIE Patpar Ganj Industrial Area