The N.S.A. and Its Targets: Lavabit Shuts Down : The New Yorker
Not every suspension-of-service notice for an e-mail company comes with a link to a legal-defense fund. Ladar Levison, the owner and operator of Lavabit, whose clients, reportedly, have included Edward Snowden, made it sound today as though he could use the help. “I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit,” Levison wrote in a note posted on his site.
I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on—the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
As Kevin Poulsen and others have pointed out, our collective experience has prepared us to guess what is going on here: Levison got either a national-security letter “or a full blown search or eavesdropping warrant.” In the weeks since the Guardian and Washington Post first began publishing stories with Snowden’s documents, the picture of the National Security Agency’s domestic-surveillance practices that’s come together is different from the one most everyone held before we’d ever heard Snowden’s name. And it has left the Administration’s explanations of what it does and doesn’t do looking pretty spotty, and at times just false.
The news about Lavabit came on the same day as a story by Charlie Savage, in the Times, in which he followed up on an awkwardly phrased passage in a document supposedly about all the very strict constraints on the N.S.A. when it comes to reading the contents of Americans’ e-mails—a reference to “cases where NSA seeks to acquire communications about the target that are not to or from the target.” What that meant, he learned from further reporting, was that the agency thought it was allowed read Americans’ e-mails pretty freely, by “temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border.” The N.S.A. comes up with a search term that is “about” a foreign target, and then reads whatever e-mails sent into and out of the country that it finds containing it. How is this not “targeting” Americans, when their communications are pulled out of the stream and studied? The answer is a language game: the person to whom those e-mails belong is not, by the N.S.A.’s definition, its target, nor—and this is somewhat new—does that person even have to be in touch with any foreign target. All you really have to be is interested in the same things as a target—or even just to use some words the N.S.A. has decided are “about” the target.
The extreme example that an unnamed official gave Savage is a search for a phone number the N.S.A. believes terrorists are using to call each other. What about a name? Could the N.S.A. read e-mails from members of the public if they simply discuss the case of someone the government has said is a threat? It sounds like it. This is dangerous; we already have Senators constrained from talking about what they know. We can’t all be afraid to ask questions; for a democracy, the most threatening thing would be the absence of such conversations.
The N.S.A. is not supposed to spy on Americans. There are times when its mission—to identify foreign national-security threats—leads it to communications involving Americans. There are warrants for that, issued by the secret Foreign Intelligence Surveillance Act court, or at least there are supposed to be. Some of the documents released by Snowden showed that the FISA court had given the N.S.A. vague and general dispensations; others showed how it got around the question of individualized warrants entirely in the bulk collection of data like call records. This was done, in part, by redefining simple words like “relevant” and “collect”—and, now, “about.” This is the other alarming part of Savage’s piece: the further confirmation of the degradation of language. Every time the Administration says not to worry—that surveillance does not “target” Americans—the word seems to mean less and less, to the point where one expects it to argue that an American does not count as its target—with the legal protections that word implies—unless he is wearing a dartboard with a bull’s eye around his neck.
All of that information is tempting. Reuters had a story this week about how government agencies that really have nothing to do with terrorism have angled to use this information, are getting it, and then are pretending that they didn’t. That is a whole other set of dots we may just be beginning to put together.
Ladar Levison, of Lavabit, wrote that his company had “already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals.” But he pointed to two things that were lacking: “congressional action or a strong judicial precedent.” Until then, he said, “I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.” But that is where we Americans live, and where we need to push back.
via The N.S.A. and Its Targets: Lavabit Shuts Down : The New Yorker.