The Obama Administration Is 10 Steps Behind The Guardian in Addressing Leaks

Two interesting things happened Wednesday in the ever-evolving Edward Snowden-National Security Agency saga.

1. The government—for the sake of transparency—released documents outlining the basics of the programs to collect phone metadata. This leak, as you might recall, was the opening number of the Snowden Saga. As described by TheNew York Times, the documents "said the government may access the logs only when an executive-branch official determines that there are 'facts giving rise to a reasonable, articulable suspicion' that the number searched is associated with terrorism." Or basically, what we've known from the leaks and the administration's response to said leaks. The only news here was in the headline.

2. What makes that first bit of news particularly interesting is this other development Wednesday: The Guardian dropped another bomb, revealing a program called XKeyscore, which "allows analysts to search with no prior authorization through vast databases containing e-mails, online chats, and the browsing histories of millions of individuals," as The Guardian learns via Snowden. Basically, the whole of the Internet is open to the NSA's systems. The amount of data the program selects is so large that it can only be stored for three or five days; metadata persists for a month. Data deemed "interesting" is set aside for longer storage.

What a dance this is. As the administration is just getting around to making attempts at transparency on the first chapter, The Guardian provides another leak to account for.

According to The Guardian, the XKeyscore program doesn't explicitly need a search warrant for a government-contractor, such as Snowden, to go snooping. Instead, all it reportedly takes is a "simple on-screen form giving only a broad justification for the search," Glenn Greenwald reports. "The request is not reviewed by a court or any NSA personnel before it is processed." And while the NSA maintains this is for foreign surveillance, according to TheGuardian, "XKeyscore provides the technological capability, if not the legal authority, to target even U.S. persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their e-mail or IP address, is known to the analyst."

Federal officials Greenwald spoke to denied this. But Greenwald has the slides to show how the system works. See them here.

In his live chat on The Guardian website in June, Snowden wrote that the restrictions on people like him spying on non-FISA-warranted individuals "are policy based, not technically based." In releasing the documents Wednesday, the government doesn't really address this central concern. Again, they address the policy, showing how Congress was informed about the programs. When President Obama appeared with Charlie Rose on PBS in June to address the NSA concerns (again, on the same exact day as the Snowden live chat—coincidence?), he said this, reassuring the public that institutional safeguards were in place:

So, on this telephone program, you've got a federal court with independent federal judges overseeing the entire program.... And you've got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee—but all of Congress had available to it before the last reauthorization exactly how this program works.

These types of answers don't really address Snowden's concern: Safeguards aside, the potential for abuse is real.

There's a saying, "Locks are for honest people." Apparently so are policies. As Matt Cooper writes today in National Journal, the central question over leakers such as Bradley Manning and Edward Snowden has yet to be resolved: What should be done about the fact that run-of-the-mill analysts have such great access to information (even if it is illegal for them to take it)?