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Surveilling the new year: TheNSA story moves into 2014The end of 2013 saw a rush of big NSA news, from a judge calling anagency program "almost Orwellian" to a bevy of tech stars talkingreform at the White House. What lies ahead?

Edward Snowden feared he'd sacrifice his future to expose NSA wrongdoings, only to find that no one caredabout the agency's spying. That doesn't quite seem to have been the case.

(Credit: Laura Poitras/The Guardian/screenshot by CNET)

New Year predictions are always risky, but when it comes to the NSA and itscontroversial surveillance programs, you don't have to be privy to secret intelligence toknow that reform will arrive.

The tricky part is: How real will it be?

"I think everybody in Congress and the executive branch understands that's it gotten tothe point where they have to do something," said Kurt Opsahl, senior staff attorney withthe Electronic Frontier Foundation, one of the main nonprofits that's been taking onthe spy agency. "You know, they can't just say, 'look, everything's fine, and no changesare necessary.' So, something will have to be done. The question is whether that will beactual reform or cosmetic."

It's true that we've seen a bang-up finish to 2013 in regard to the NSA story, with theagency and its allies taking three solid hits to the chin.

More on the NSA and surveillance

by Edward Moyer | December 30, 2013 4:00 AM PST

Saving the Net from the surveillance state: Glenn Greenwald speaks up(Q&A) [http://www.cnet.com/8301-13578_3-57613838-38/saving-the-net-from-the-surveillance-state-glenn-greenwald-speaks-up-q-a/]

Obama: NSA programs could be "redesigned" to prevent abuses[http://www.cnet.com/8301-13578_3-57616196-38/obama-nsa-programs-could-be-redesigned-to-prevent-abuses/]

Snowden says tech capabilities mustn't trump laws and values[http://www.cnet.com/8301-13578_3-57615444-38/snowden-says-tech-capabilities-mustnt-trump-laws-and-values/]

Web inventor Berners-Lee sounds alarm on mass spying

Surveilling the new year: The NSA story moves into 2014 | Polit... http://news.cnet.com/8301-13578_3-57616144-38/surveilling-t...

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On December 16, a conservative federal judge appointed by George Bush the Secondruled, in Klayman v. Obama [http://www.cnet.com/8301-1009_3-57616313-83/judge-nsa-phone-surveillance-is-legal-and-a-vital-tool/] , that the NSA's phone-records program violates the Fourth Amendment.And he made no bones about it, calling the program "almost Orwellian" and saying itwould leave founding father James Madison "aghast." (The judge's injunction againstthe program is on hold pending a government appeal.)

Then, on December 17, a group of tech heavy hitters including Apple's Tim Cook,Google's Eric Schmidt, and Yahoo's Marissa Mayer hijacked the agenda of a WhiteHouse meeting with President Obama, shifting the emphasis from fixingHealthcare.gov [http://www.cnet.com/8301-1023_3-57615792-93/obama-to-meet-with-tech-execs-over-glitchy-healthcare.gov/] to fixing a spy agency[http://www.nytimes.com/2013/12/18/us/politics/as-tech-industry-leaders-meet-with-obama-nsa-ruling-looms-large.html] critics say has gonerogue. (This in-person push for reform followed a campaign[http://www.cnet.com/8301-13578_3-57614918-38/tech-giants-call-for-greater-limits-on-government-surveillance/] earlier in the month that includedfull-page ads in The New York Times, The Washington Post, and elsewhere.)

Then, on the 18th -- prompted, perhaps by the week's prior events -- the White Housedecided not to wait until January as previously planned, and it released the report bythe panel Obama handpicked to investigate the NSA's programs. That bipartisan group,which included a former deputy director of the CIA and a former White Housecounterterrorism adviser, surprised the skeptical with a report that impressed[https://twitter.com/JameelJaffer/status/413433025582469121] evenJameel Jaffer, deputy legal director of big-time surveillance critic the ACLU.

Among other things, the report says call data should no longer be collected by the NSAand should instead be kept by the phone companies, with the spy agency needing acourt order, on a case-by-case basis, to get at it. The findings also say (as did theBush-appointed judge, and as critics have been saying for some time) that there's noevidence [http://investigations.nbcnews.com/_news/2013/12/19/21975158-nsa-program-stopped-no-terror-attacks-says-white-house-panel-member]the NSA's contested programs have contributed to fighting terrorism. That last pointpotentially takes the wind out of the agency's main [http://www.cnet.com/8301-1009_3-57610140-83/nsa-said-to-intentionally-cite-9-11-to-justify-spying-program/] defensive talking point [http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/02/the-nsa-wrote-turkey-day-talking-points-because-of-course-it-did/] .

If you doubt that all this had the NSA's critics a little giddy, just check out some[http://ac360.blogs.cnn.com/2013/12/16/does-judges-ruling-against-nsa-exonerate-edward-snowden/] of this eventful December week's TVappearances [http://www.youtube.com/watch?v=fQbNlK-4Vr0 ] byjournalist, Internet defender [http://www.cnet.com/8301-13578_3-57613838-38/saving-the-net-from-the-surveillance-state-glenn-greenwald-speaks-up-q-a/] , and Edward Snowden confidant GlennGreenwald, and watch as he tries -- unsuccessfully -- to contain his glee[https://twitter.com/ggreenwald/status/414052533988904960] .

[http://www.cnet.com/8301-13578_3-57611160-38/web-inventor-berners-lee-sounds-alarm-on-mass-spying/]

Obama, NSA criticized over press freedom [http://www.cnet.com/8301-13578_3-57607012-38/obama-nsa-dissed-by-report-as-edward-snowden-reappears/]

Past as prologue? Vietnam-era spying by NSA comes to light[http://www.cnet.com/8301-13578_3-57604838-38/past-as-prologue-vietnam-era-spying-by-nsa-comes-to-light/]


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The year 2013 ended on a very high note for journalist Glenn Greenwald (right) and other critics of the NSA.He's shown here on Anderson Cooper's CNN show, reacting to an assertion by The New Yorker's JeffreyToobin (offscreen) that Edward Snowden was not vindicated by a ruling that found the NSA has beenviolating the Constitution in "Orwellian" fashion.

(Credit: CNN/Screenshot by CNET)

But though these noise-making New Year's Eve developments might have temptedsome anti-NSA'ers to bust out the party hats, the situation is far from resolved, and thesort of reform that surveillance critics would call "real" is not ensured.

After all, the government will very probably appeal the ruling in the Klayman case[http://www.forbes.com/sites/gregorymcneal/2013/12/16/klayman-v-obama-nsa-metadata-collection-opinion-ocr/] ; at least one source[http://www.sfgate.com/technology/article/Obama-won-t-give-tech-firms-assurances-on-snooping-5076634.php] says Obama gave the tech companies noguarantee of reform; and the president has already ignored one of his panel'ssuggestions, opting to keep a single military official in charge of both the NSA and thePentagon's Cyber Command, rather than split the duties between two chiefs.

And then on December 27, in a separate case (ACLU v. James R. Clapper), a judgeissued a pro-NSA ruling, saying that the agency's bulk collection of telephony metadatais both reasonable and legal [http://www.cnet.com/8301-1009_3-57616313-83/judge-nsa-phone-surveillance-is-legal-and-a-vital-tool/] , and calling it a "vital tool" for disrupting terrorist attacks. At some point,the contrary judicial interpretations will have to be reconciled.

So what should we keep an eye on in 2014? Here's a rundown, chopped into subjectareas.

Legislation: Congressional smackdown ahead?

Congress is batting around various reform proposals, but the two biggies seem to be theUSA Freedom Act, penned by Patriot Act co-crafter Rep. Jim Sensebrenner (R-Wis.),along with Senate Judiciary Chairman Patrick Leahy (D-Vt.), and the FISAImprovements Act, sponsored by Senate Intelligence Committee Chairwoman DianneFeinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.).

"There's no sugarcoating it. These two trains -- one that codifies bulk collection and theother that outlaws it -- are on a collision course," Gregory Nojeim, senior counsel atprivacy advocate the Center for Democracy and Technology, told[http://www.washingtonpost.com/world/national-security/nsa-bills-set-up-a-choice-in-congress-end-bulk-collection-of-phone-records-or-endorse-it/2013/10/28/99007880-3fd5-11e3-a751-f032898f2dbc_story.html] The Washington Post earlier in the year.

The Sensenbrenner-Leahy bill is the one that would do the outlawing. It's designed to,among other things:

End the bulk, suspicionless collection of Americans' communications records that'sbeen done under Section 215 of the Patriot Act [http://www.slate.com/blogs/weigel/2013/06


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/07/nsa_prism_scandal_what_patriot_act_section_215_does.html] .Under 215, the NSA can grab data from companies such as phone carriers simply byshowing the secretive Foreign Intelligence Surveillance Court that the information is"relevant" to an international terrorism investigation. The USA Freedom Act wouldcreate a stricter standard, prohibiting the NSA from accessing data unless it's associatedwith someone who's actually suspected of being a terrorist or a foreign agent, or who'sin contact with one.

Set up a kind of adversarial process [http://www.thedailybeast.com/articles/2013/09/19/pentagon-papers-james-c-goodale-the-outrageous-nsa-opinion.html] in the Foreign Intelligence Surveillance Court. Currently, whenthe NSA is seeking data, the court hears only the government's arguments. TheSensenbrenner-Leahy bill would establish an Office of the Special Advocate whose job itwould be to promote privacy interests before the court.

End secret laws [http://www.thedailybeast.com/articles/2013/09/19/pentagon-papers-james-c-goodale-the-outrageous-nsa-opinion.html]by requiring that all FISC decisions that contain a significant construction orinterpretation of law be made public (without privacy advocates having to push[http://bigstory.ap.org/article/govt-drops-objection-publishing-secret-opinion] for this to happen).

Increase transparency by letting communications companies go public[http://www.cnet.com/8301-1009_3-57612322-83/google-were-bombarded-by-govt-requests-on-user-data/] with the number ofsurveillance orders they receive.

FISA Improvements Act sponsors Dianne Feinstein and Saxby Chambliss (right), during a Senate (Select)Intelligence Committee hearing this past September on FISA legislation.

(Credit: Alex Wong/Getty Images)

The FISA Improvements Act, on the other hand, is the one that would do the codifying.

Feinstein [http://www.usatoday.com/story/opinion/2013/10/20/nsa-call-records-program-sen-dianne-feinstein-editorials-debates/3112715/] , acommitted supporter [http://www.nytimes.com/2013/07/02/us/politics/feinsteins-support-for-nsa-defies-liberal-critics-and-repute.html] of theNSA, has said she believes the agency's call-records program is constitutional[http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=77de634e-fdf4-4515-a0a1-159882812b8f] and "subject toextensive congressional judicial oversight[http://www.washingtonpost.com/world/national-security/senate-bill-would-approve-nsa-program-but-try-to-curb-it/2013/10/31/ca59e74c-4271-11e3-a751-f032898f2dbc_print.html] " and that it "contributes to ournational security." She says that more simply needs to be done "to increasetransparency and build public support for [the] privacy protections [that are] in place."


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Among other things, the FISA Improvements Act:

Creates a penalty of up to 10 years in prison for intentional unauthorized access to dataacquired under the Foreign Intelligence Surveillance Act.

Mandates an annual public report on the total number of queries of the NSA's phone-metadata database.

Allows the FISC to designate outside "friends of the court" to help review matters thatinvolve new or significant legal interpretations.

But the bill also would, according to NSA opponent Sen. Ron Wyden (D-Ore.),"expressly authorize [http://www.washingtonpost.com/politics/senate-bill-would-validate-nsas-harvesting-of-phone-e-mail-records-privacy-advocates-say/2013/11/02/aa24932e-4310-11e3-a751-f032898f2dbc_story.html] this bulk collection for the first time," and criticspoint to Feinstein's proposed legislation as exactly the sort of "cosmetic," "fig leaf[http://www.cato.org/blog/nsa-fig-leaf-act-2013] " reform that the EFF'sOpsahl speaks of. That's why a slew of civil liberties groups oppose it[https://www.eff.org/deeplinks/2013/12/54-civil-liberties-and-public-interest-organizations-oppose-fisa-improvements-act] .

Feinstein has a lot of influence among Democrats in Congress, so her bill shouldn't betaken lightly. On the other hand, during wrangling this past summer over a military-spending bill, Rep. Justin Amash (R-Mich.) proposed an amendment that would'veblocked funding for the NSA's bulk collection of phone records. That amendment wasdefeated by a scant seven votes [http://www.cnet.com/8301-13578_3-57595391-38/house-narrowly-rejects-bid-to-curb-nsa-domestic-surveillance/] , so the Sensenbrenner-Leahy bill may have a solid chanceon the hill. It also has the backing of major privacy advocates.

"The entire nonprofit community has gotten behind the same bill," says ACLUlegislative counsel Michelle Richardson, "it's the USA Freedom Act." Some, however,including the EFF's Opsahl, have said that though it's a great start, it doesn't go farenough [https://www.eff.org/deeplinks/2013/11/floor-not-ceiling-supporting-usa-freedom-act-step-towards-less-surveillance] .

The coming year will see various members of Congress campaigning for re-election, and"people in election years usually want to get everything done in the first six months,"says Richardson. That, and the obvious visibility of the NSA issue, may discourage anydelays on hashing out these two proposals and ultimately picking a winner.

The courts: Privacy in the era of 'the Internets'

The big news in the judicial realm as we head into 2014? The cat's out of the secretcourt.

Oh, and there's a chance privacy law will catch up to the Digital Age.

US District Judge Richard J. Leon, in a case called Klayman v. Obama, is the one who inlate December called the NSA's bulk collection of phone metadata "almost Orwellian."And he's also the one who's freed the cat.

"In granting the plaintiffs [in the case] legal standing to sue the government on thegrounds that they, most likely, had had their phone records seized," The New Yorker'sJohn Cassidy writes [http://www.newyorker.com/online/blogs/johncassidy/2013/12/richard-leon-nsa-ruling-learned-hand.html] , Judge Leon "breachedthe wall that had kept the legal arguments about domestic surveillance confined insidethe secretive FISA court."

In his ruling, Leon wrote [http://www.newyorker.com/online/blogs/closeread/2013/12/the-dominos-hypothetical-judge-leon-vs-the-nsa.html]that "while Congress has great latitude to create statutory schemes like FISA, it may nothang a cloak of secrecy over the Constitution."

And so, in the words of the EFF's Opsahl, "over the course of the next year, we're goingto have open-court analysis of these programs, where judges will have heard from bothsides and seen the problems with the government's arguments, and I think that's goingto be very useful for assessing the legality and also helping the judges and the publicunderstand what's going on."


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Supreme Court Justice Sonia Sotomayor may well have a point about privacy in the Digital Age...

(Credit: Justin Sullivan/Getty Images)

What, then, is likely to come up? And what of the Digital Age? Well, as the Klaymancase goes to appeal -- and other cases, such as those filed by the EFF[https://www.eff.org/nsa-spying] and the ACLU [https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking], wend their way through the courts -- we'll no doubt be hearing a fair amount abouttwo Supreme Court cases: Smith v. Maryland, from 1979, and 2012's United States v.Jones.

In justifying the NSA's warrantless collection of phone and other metadata, thegovernment relies heavily on the Supreme Court's finding in Smith that the plaintiff inthe case didn't have a reasonable expectation of keeping the telephone numbers hedialed private. That's because, the court said, he freely transmitted the numbers to thephone company and knew they'd be recorded. In his December 27 ruling in favor of theNSA in the case brought by the ACLU, Judge William Pauley found much to like in theSmith precedent.

But critics of the NSA's application of that precedent to its bulk, suspicionlesssurveillance programs say the Smith case isn't relevant: It had to do[http://www.wired.com/threatlevel/2013/10/nsa-smith-purse-snatching/]with the collection, by law enforcement, of a single person's phone-call data for twodays. And the police, though they hadn't requested a probable-cause warrant, hadcompelling evidence the person was guilty of a crime. How could that reasonably beextended to the collection of everyone's metadata all the time?

Beyond that, however, is the fact that the Smith ruling is more than 30 years old, and,as we all know (while perhaps reading this article on a laptop or a tablet[http://reviews.cnet.com/tablets/] or a smartphone) a lot has changed in thatspan.

Supreme Court Justice Sonia Sotomayor makes this point in her concurring opinion inUS v. Jones [http://en.wikipedia.org/wiki/United_States_v._Jones_%282012%29] , a case related to the placing of aGPS device on a suspect's car [http://reviews.cnet.com/car-tech/] . Citing theSmith ruling, she writes:

It may be necessary to reconsider the premise that an individual has no reasonableIt may be necessary to reconsider the premise that an individual has no reasonableexpectation of privacy in information voluntarily disclosed to third parties. Thisexpectation of privacy in information voluntarily disclosed to third parties. Thisapproach is ill suited to the Digital Age, in which people reveal a great deal ofapproach is ill suited to the Digital Age, in which people reveal a great deal ofinformation about themselves to third parties in the course of carrying out mundaneinformation about themselves to third parties in the course of carrying out mundanetasks. People disclose the phone numbers that they dial or text to their cellulartasks. People disclose the phone numbers that they dial or text to their cellular


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providers; the URLs that they visit and the e-mail addresses with which theyproviders; the URLs that they visit and the e-mail addresses with which theycorrespond to their Internet service providers; and the books, groceries, andcorrespond to their Internet service providers; and the books, groceries, andmedications they purchase to online retailers. Perhaps, as Justice Alito notes, somemedications they purchase to online retailers. Perhaps, as Justice Alito notes, somepeople may find the "tradeoff" of privacy for convenience "worthwhile," or come topeople may find the "tradeoff" of privacy for convenience "worthwhile," or come toaccept this "diminution of privacy" as "inevitable," and perhaps not. I for one doubt thataccept this "diminution of privacy" as "inevitable," and perhaps not. I for one doubt thatpeople would accept without complaint the warrantless disclosure to the Government ofpeople would accept without complaint the warrantless disclosure to the Government ofa list of every Web site they had visited in the last week, or month, or year.a list of every Web site they had visited in the last week, or month, or year.

And in the Klayman ruling, Judge Leon is on Sotomayor's wavelength, also citingSmith. "When," he writes, "do present day circumstances -- the evolution in thegovernment's surveillance capabilities, citizens' phone habits, and the relationshipbetween the NSA and telecom companies -- become so thoroughly unlike thoseconsidered by the Supreme Court 34 years ago that a precedent like Smith does notapply. The answer, unfortunately for the government, is now."

...and so may US District Judge Richard J. Leon.

(Credit: Suffolk University Law Review [http://suffolklawreview.org/lect/judge-richard-j-leon-donahue-lecture-series-9282012/] )

Leon's ruling has "invited higher courts, and ultimately the Supreme Court, to revisitthe entire issue of how privacy can be defined, and protected, in the information age,"The New Yorker's Cassidy writes. And that may not work out so well for the NSA and itssupporters.

We're not likely to see the Supreme Court weigh in on the intelligence agency's spyprograms in 2014, says the EFF's Opsahl. After all, we don't yet have even an appellatecourt ruling on an NSA case. But, he says, you never know: "It's possible for theSupreme Court to act very quickly. You may recall in the Bush v. Gore case concerningthe 2000 election, the court moved quite rapidly." And Dianne Feinstein herself says[http://www.nationaljournal.com/defense/feinstein-let-supreme-court-decide-if-nsa-surveillance-is-constitutional-20131217] she hopes the SupremeCourt will take on the Klayman case.

How would the Supremes rule? In the Jones GPS case, says Opsahl, five of the justiceswere signaling, in separate opinions, that they were ready "to provide some clarificationthat would put some doubt on the Smith v. Maryland case the DOJ is urging" and"that's all you need for a positive Supreme Court decision."

But who knows? Feinstein points out [http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=77de634e-fdf4-4515-a0a1-159882812b8f]that "Judge Leon's opinion...differs from those of at least 15 separate federal districtcourt judges who sit, or have sat, on the FISA Court."

In any, um, case, this time around we'll get the chance to observe the proceedings.

The president: Executive decision

What we may likely see first in 2014 regarding NSA reform is at least some action from


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President Obama on the recent recommendations made by the independent panel heassembled to review the agency's spy programs.

During the last regularly scheduled White House press conference of the year, onDecember 20, Obama said [ http://news.cnet.com/8301-13578_3-57616196-38/obama-nsa-programs-could-be-redesigned-to-prevent-abuses/ ] that comeJanuary he'd make a "pretty definitive" statement about the panel's suggestions.

And those suggestions are a "game changer," Greg Nojeim, an attorney for privacygroup the Center for Democracy and Technology, told [ http://thehill.com/blogs/hillicon-valley/technology/193668-president-boxed-in-on-nsa-reforms ]Beltway blog The Hill. The consensus seems to be that the relatively aggressivesuggestions for reform in the group's 300+ page report (PDF[http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf] ) took the White House by surprise, andcould force Obama to alter policy to a greater extent than he otherwise might have. Still,it's a matter of debate [http://www.newyorker.com/online/blogs/johncassidy/2013/12/nsa-report-white-house-the-good-and-the-bad.html]as to just how much the recommendations -- even if fully implemented -- would changethe key components of the intelligence community's game.

The panel came up with more than 40 potential reforms for the NSA. In addition to thesuggestion that call data be kept by phone companies and shared with the spy agencyonly under court order, the group recommends that the NSA be prohibited frommonkeying with commercial software to get around encryption, and that, to avoidconflicts of interest, the part of the agency charged with strengthening computersecurity to protect US systems be split off from the part charged with cracking intoforeign systems.

Obama at the pre-holiday press event: "If something slips, then the question that's coming from you the nextday at a press conference is, 'Mr. President, why didn't you catch that; why did the intelligence people allowthat to slip; isn't there a way that we could have found out that in fact this terrorist attack [was going to take]place?'"

(Credit: Alex Wong/Getty Images)

It also suggests that foreigners be given essentially the same protections US citizensenjoy under the Privacy Act of 1974 and that the power to choose FISA court judges bespread among all 12 Supreme Court Justices, rather than resting only with Chief JusticeJohn Roberts, as it does now. And the group says the FBI's power to demand data fromcompanies by way of National Security Letters should be strongly limited.

Obama said that in the next few weeks, he'll be talking with the intelligence communityand people inside and outside of government about the recommendations. Some of thepanel's reforms could be ordered into effect by the president; others would need to belegislated by Congress. Various reports say the panel's ideas are likely to get significantpushback [http://www.washingtonpost.com/blogs/right-turn/wp/2013/12/19/the-nsa-review-report-should-be-tossed-in-the-trash/] from the


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intelligence agencies and the Department of Justice, and at least one report says[http://www.washingtonpost.com/world/national-security/officials-defenses-of-nsa-phone-program-may-be-unraveling/2013/12/19/6927d8a2-68d3-11e3-ae56-22de072140a2_story.html ] an internal WhiteHouse group of national security officials will offset the outside panel's suggestions withmore-conservative ones.

Programs like 215 could be redesigned in ways that give [the NSA] thesame information when [it needs] it, without creating these potentials for

abuse."

--President Barack ObamaBut if statements made at press conferences are any indication, Obama does seem tohave altered his tune somewhat. In August, he said [ http://www.npr.org/2013/08/09/210574114/transcript-president-obamas-news-conference] , "Theprograms are operating in a way that prevents abuse, that continues to be true, withoutthe reforms." At the December 20 presser, he said [http://www.washingtonpost.com/politics/running-transcript-president-obamas-december-20-news-conference/2013/12/20/1e4b82e2-69a6-11e3-8b5b-a77187b716a3_story.html ] , "programs like 215could be redesigned in ways that give [the NSA] the same information when [it needs]it, without creating these potentials for abuse" and that "there might need to bedifferent checks on how those requests [for data] are made." That would appear tosuggest the imposition of at least some additional privacy protections and legalsafeguards.

And it may mean that the panel has, as The New Yorker's Cassidy writes[http://www.newyorker.com/online/blogs/johncassidy/2013/12/nsa-report-white-house-the-good-and-the-bad.html] , "performed a valuableservice in confirming that the electronic spooks have overstepped their bounds andneed reining in, at least somewhat. Until very recently, that was a minority view inWashington." That does seem to change the game a bit.

However, when it comes to scaling back the surveillance programs, Obama is clearlystill concerned about terrorism -- and, perhaps, public opinion. At the recent WhiteHouse gathering he told reporters, "If something slips, then the question that's comingfrom you the next day at a press conference is, 'Mr. President, why didn't you catchthat; why did the intelligence people allow that to slip; isn't there a way that we couldhave found out that in fact this terrorist attack [was going to take] place?'"

Tech firms: The turn toward reform

Tech companies have been feeling the heat since the very first Snowden revelations,when secret NSA documents involving the agency's Prism system came to light,explicitly mentioning AOL, Apple, Facebook, Google, Microsoft, and Yahoo, andsuggesting -- at least according to initial [http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html] media reports -- that the agencyenjoyed "direct access" to company servers.

The direct access claim was quickly disputed [http://www.nytimes.com/2013/06/08/technology/tech-companies-bristling-concede-to-government-surveillance-efforts.html] , and Silicon Valley and other tech hubs rang withdenials and protestations. But the companies stopped short of calling for reform of thespy agency's surveillance programs. Instead they focused on winning the right to let thepublic know just how many requests for customer data they receive from agenciesfocused on national security (the idea being that such numbers would help calmcustomer fears of unlimited data vacuuming).

But as the months have passed, and the revelations have poured forth, the companieshave moved beyond the push for transparency. Domestic PR bruises have played a role,as have threats to business overseas -- caused by suspicion that American tech offeringsplace customers in the hands of US intelligence outfits, either through data-sharingarrangements or backdoors built in to products.


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Apple's Tim Cook, Google's Eric Schmidt, Yahoo's Marissa Mayer, Facebook's Sheryl Sandberg, and othersmeet with President Obama at the White House.

(Credit: Mark Wilson/Getty Images)

The big turning point seemed to come at the end of October, when it was reported[http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-data-centers-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e3-8b74-d89d714ca4dd_story.html] thatthe NSA had secretly tapped into the private fiber-optic networks that connect Google'sand Yahoo's worldwide data centers, allowing it to suck up "at will" metadata andcontent belonging to users of the companies' services.

As if the trespass itself weren't enough, an internal "NSA presentation slide" publishedby The Washington Post featured a Post-It Note sketch showing where the publicInternet meets the private cloud maintained by Google. And it pointed out -- with a cutehand-drawn smiley face -- that the data within the cloud was unencrypted and thusaccessible (though Google has been working to encrypt such information). This seemingdisplay of how delighted the NSA was by its maneuverings stoked the ire of Google'sengineers -- and inspired some no-nonsense vocabulary [http://boingboing.net/2013/11/06/google-security-engineer-on-ns.html] . And the move towardreform shifted into high, and highly visible, gear.

The proof will be in the pudding, so we'll have to see what their nextsteps are and whether they're willing to work for actual changes that are

going to be necessary to stop spying."

--Michelle Richardson, ACLUDecember saw [http://www.cnet.com/8301-13578_3-57614918-38/tech-giants-call-for-greater-limits-on-government-surveillance/] Apple, Facebook,Google, Twitter, and other firms band together to take out full-page ads in majornewspapers, informing the president and Congress of "the urgent need to reformgovernment surveillance practices worldwide." A companion Web site,ReformGovernmentSurveillance.com[http://reformgovernmentsurveillance.com/] , lists five principles, includingthe assertion that "governments should limit surveillance to specific, known users forlawful purposes, and should not undertake bulk data collection of Internetcommunications."


10 of 16 1/3/14, 4:54 PM

The emoticon seen 'round the (tech) world.

And the final month of 2013 also saw major tech celebrities such as Tim Cook, EricSchmidt, and Marissa Mayer pitching these principles to President Obama in person, atthe White House (while previously introduced [http://www.politico.com/story/2013/10/nsa-surveillance-creeps-onto-techs-lobbying-agenda-98706.html] Beltway lobbying efforts [http://www.washingtonpost.com/business/capitalbusiness/tech-companies-turn-to-lobbyists-after-nsa-fallout/2013/10/25/08d27046-3b30-11e3-a94f-b58017bfee6c_story.html ] continued in the background).

It's not clear how much of an impact all this will have. Obama has reportedly[http://www.nytimes.com/2013/12/18/us/politics/as-tech-industry-leaders-meet-with-obama-nsa-ruling-looms-large.html] given the techcompanies no guarantees, and despite their deep pockets and major role in the USeconomy, the big tech firms have "not always, or even often, got their way on policyissues," Zoe Lofgren, whose congressional district includes part of Silicon Valley,recently told [http://www.theguardian.com/world/2013/dec/09/tech-giants-nsa-reform-surveillance-game-changer] the Guardian. (The companiesthemselves haven't been holding their breath; they've been busily encrypting[http://www.cnet.com/8301-1009_3-57612543-83/battle-brews-as-tech-companies-attempt-to-fend-off-nsa-hacking/] their offerings to defend themfrom NSA snooping -- and they'll no doubt continue those efforts into the New Year.)

Still, if you're a critic of the NSA, it probably can't hurt to have some of the world'sbiggest companies pushing for change.

"I think it's a great start," says the ACLU's Richardson. "You have to look at the last 12years, and the companies have not worked for privacy in a national security contextbefore, so this is new; it's the first time they've spoken out, and we're very excited." But,she also says, "the proof will be in the pudding, so we'll have to see what their next stepsare and whether they're willing to work for actual changes that are going to benecessary to stop spying."

More data to collect (i.e., other things to watch)

The NSA story is so huge and complex, it's tough to vacuum up all the details. Here,briefly, are a few other areas to spy on in the New Year.

Edward Snowden will see his yearlong temporary asylum in Russia come to an end.Germany has reportedly [http://www.dw.de/brazil-debates-asylum-for-snowden/a-17307995] cited trans-Atlantic alliance priorities in saying nein toasylum for the whistle-blower, but Brazil is debating whether to welcome him in. IfSnowden did wind up in Brazil, he could presumably stop chatting with GlennGreenwald [http://www.cnet.com/8301-13578_3-57613838-38/saving-the-net-from-the-surveillance-state-glenn-greenwald-speaks-up-q-a/] viaencrypted instant-messaging software and simply drop by the journalist's Rio home foran IRL conversation.

Speaking of Glenn Greenwald, he says there will be "definitely more[http://abcnews.go.com/International/glenn-greenwald-reports-based-edward-snowdens-documents-coming/story?id=21129762 ] " reports comingbased on his cache of Snowden documents. Also, his fledgling newsgathering outfit,hatched with millions in backing from eBay founder Pierre Omidyar[http://www.cnet.com/8301-13578_3-57607842-38/spooked-by-nsa-ebay-founder-plans-hard-hitting-news-site/] , recently lost its temporary"NewCo" moniker and is now known as First Look Media. In a recent post [http://pressthink.org/2013/12/a-first-look-at-newcos-structure/] on hisPress Think blog, press critic and journalism educator Jay Rosen, a First Look teammember [ http://pressthink.org/2013/11/newco/ ] , says the company will beboth a nonprofit and a for-profit: "The news and editorial operation will be a nonprofit.The technology company will be a business run for profit." Expect its team[http://www.cnet.com/8301-1023_3-57612665-93/nsa-foe-greenwald-whips-his-new-media-venture-into-shape/] to continue growing in 2014.

The NSA's character could shift in some way beginning this spring, when currentDirector Keith Alexander retires, after eight year's at the agency's helm. His leaving


11 of 16 1/3/14, 4:54 PM

"has nothing to do with media leaks," an agency representative told[http://www.reuters.com/article/2013/10/16/us-usa-nsa-transition-idUSBRE99F12W20131016] Reuters earlier this year, adding that "the decision forhis retirement was made prior." In a September profile of Alexander, Foreign Policyquoted an unnamed former intelligence official as saying[http://www.foreignpolicy.com/articles/2013/09/08/the_cowboy_of_the_nsa_keith_alexander#sthash.n17M2Fzl.dpbs]Alexander "tended to be a bit of a cowboy: 'Let's not worry about the law. Let's justfigure out how to get the job done.'" (Alexander told the publication in a writtenstatement that "the missions of NSA and USCYBERCOM are conducted in a mannerthat is lawful, appropriate, and effective, and under the oversight of all three branchesof the US government.") As for a replacement, Foreign Policy has cited unnamedsources in reporting [http://thecable.foreignpolicy.com/posts/2013/12/13/top_nsa_civilian_resigns_as_surveillance_controversy_swirls#sthash.ibu3CkcP.jzo1wv8V.dpbs]that "the odds-on-favorite is Adm. Michael Rogers[http://thecable.foreignpolicy.com/posts/2013/10/17/obamas_likely_pick_for_nsa_chief_is_a_master_spy_it_may_not_be_enough#sthash.Ax2r08uG.OOKOv45Y.dpbs], the current head of Navy signals intelligence and the service's cyberwarfareoperations. Another name has also surfaced as a contender: Army Lt. Gen. MaryLegere, currently the head of intelligence for the Army."

Come the spring, Keith Alexander, the "cowboy" of the NSA (as one source has it), will ride off into the sunset.

(Credit: Win McNamee/Getty Images)

[http://www.cnet.com/profile/edward_moyer/]

About Edward Moyer [http://www.cnet.com/profile/edward_moyer/]

Edward Moyer is an associate editor at CNET News and a many-year veteran of thewriting and editing world. He enjoys taking sentences apart and putting them backtogether. He also likes making them from scratch.


12 of 16 1/3/14, 4:54 PM

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13 of 16 1/3/14, 4:54 PM

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Massresident [http://www.cnet.com/profile/Massresident]

What has to happen is some of the NSA's supporters have to be removed either in theprimary or general election. Otherwise, big brother will march on and our "free country" will

remain nothing of the sort!

/ like []reply []

sportsfan206 [http://www.cnet.com/profile/sportsfan206]

I got scared for a second, the title made me think the NSA had a time machine and wasalready in 2014. Whew

/ like []reply []

vistax86 [http://www.cnet.com/profile/vistax86] great article, lengthy, detailed, makes you ask questions.

all good things.

But why is it that in EVERY SINGLE media image of snowden wearing his glasses,regardless of the outlet,

he happens to have the left nose pad (the pressure relieving soft gel-like item that makeswearing glasses for any lengthy period of time slightly more bearable) photoshopped out?

is there some sort of message that news journalism is trying to convey by purposefullyediting his images?

9 Comments

+ Follow conversationSharePost Comment As...Post Comment As...


14 of 16 1/3/14, 4:54 PM

Dec 30, 2013

Dec 30, 2013

Dec30, 2013

Dec 30, 2013

Dec 30, 2013

Because who in their right mind would wear glasses with only one nose pad? it would getunbearably annoying in a short amount of time. I know it seems like i may be distractingfrom the original message this article presents so well, but it has irked me beyond normallevels by now.

/ like []reply []

shrlz007 [http://www.cnet.com/profile/shrlz007] What we want to see is documented proof of NSA's manipulation of the global financialmarkets!!! If it turns out NSA spying and surveillance has been used on Wall Street and/orinvolving The Central Banks/JP Morgan/The Federal Reserve etc... economic attacksagainst other countries (China, Russia)... oooooh! :D

/ like []reply []

Pronounce [http://www.cnet.com/profile/Pronounce] Two things that I feel be brought up here are: 1) A need to have legislative review of falsepositives and false negatives, and 2) A recognition that it's inappropriate for an agency tokeep incriminating information about individuals who approve budgets.

/ 1like []reply []

Tui Pohutukawa [http://www.cnet.com/profile/Tui+Pohutukawa]

The NSA, under the guise of fighting terrorism, is committing criminal acts.

/ 3like []reply []

solitare_pax [http://www.cnet.com/profile/solitare_pax] Good to know that Congress, which created this mess to begin with, is hard at work tryingto make it even worse.

Seriously, let's just send them some claymore mines and tell them there's yummy candyinside them and get this over with.

(Kudos to "Skippy's List: 213 things Skippy is no longer allowed to do in the U.S. Army" -

Google it for a giggle)

/ 1like []reply []

BooPatrick [http://www.cnet.com/profile/BooPatrick] I love NSA....YES

Please please, more interesting facts about it.


15 of 16 1/3/14, 4:54 PM

@CBS Interactive. All rights reserved.CNET

close

Dec 30,2013

All terrorists an their sympathizers shall burn and rot.

/ like []reply []

SactoGuy018 [http://www.cnet.com/profile/SactoGuy018]

I think a LOT of people fear that the EU might do the unthinkable: sue Apple, Facebook,Google, and Microosoft for allowing the NSA the compromise server security. And that couldhave a VERY chilling effect on the US economy.

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