Much More Than a Transparent Optical Element, PRISM Is Now The Code Word For The Most Controversial Intelligence Gathering System, And Has Reignited The Debate Between National Security vs. Personal Privacy.

Introduction

            Since 2007, we are living in a world where the most used and important verb is ... TO SHARE. Indeed, we are constantly sharing all type of information/data (pictures, articles, videos, emails) sometimes even without realizing it anymore. Perhaps, we are becoming so obsessed by this 'sharing culture' that when we see amazing pictures on a social network or that a friend is travelling around the world for instance, we don't really pay attention anymore or, at least, we tend to believe that 'it's normal'. But 2007 is also the year when Facebook started to expand its business, Apple launched its first generation of IPhone, Google opened Gmail for everyone, etc. In other words, with these new technologies, data become more important than before... Of course, PRISM was also created!

Yesterday, a prism was just transparent optical element that refracts light.. Today, it is considered as one of the biggest top secret information-sharing programs revealed last week to the entire world. And this thanks to/because of Edward Snowden, a 29 year-old ex-CIA member working as a contractor at the U.S. National Security Agency (NSA). Traitor or hero, the debate is currently taking place. 

As clearly explained by Wikipedia, the NSA is 'a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems, which involves information security and cryptanalysis/cryptography'. In other words, the NSA is, among others, collecting data.

(As an IP lawyer, I also have to mention that the NSA has the ability to file for patents- at the USPTO - with the distinction that they don't expire and are not revealed to the public. Pretty impressive! I cannot think of a similar agency in Europe with this kind of 'super power').

Facts

Last week, The Washington Post and the Guardian revealed the existence of a document (more precisely, a slide PowerPoint Presentation) classified as Top Secret (of course!) claiming 'collection directly from the servers' of the most dominant US service providers such as Microsoft, Google, Apple, Yahoo, Facebook, Skype, etc. The NSA access is part of a program called PRISM, 'which allows officials to collect emails, material including search history, the content of emails, file transfers and live chats, etc' (click here). Yes, it looks like private information, right!

PRISM should stand for something like, Program of Resources, Information and Support for Metadata (that's just my guess). Even if the Program is targeting (today) more than metadata, it seems plausible than in 2007 it was only focusing on technical information about communications traffic and network devices.

What's the problem/Law ?

Well, this program 'facilitates extensive, in-depth surveillance on live communications and stored information. The law allows for targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US'. The main issue is that the Program allows the NSA to directly and unilaterally (i.e. without the consent of the telecom and internet companies that control the data, and without court orders) seize the communications off the companies' servers, such as emails, photos, chat-video, voice, stored data, VoIP, online social networking details, etc... (basically, what we share everyday).

The idea behind it was to circumvent the Section 702 of the Foreign Intelligence Surveillance Act (FISA - click here) warrants. This Act 'prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power' (more details). Based on the documents/ 41-slides, it seems that FISA was broken and needed an 'update'. Thanks to PRISM, the NSA was able to obtain communications without all the administrative work that a warrant requires. Why should you complicate your life when you can obtain electronic communications in a much faster way, right?! However, this Section cannot be used to target any U.S. citizens or any person located within the US (but I am sure the US Government has other means to do it :-)).

Of course, all the major US companies have denied involvement: 'never heard' said Apple; '(we) care deeply about the security of our users' data' said Google; same idea for Microsoft (and its new campaign 'your privacy our priority') and Facebook. Dropbox, Amazon and Twitter were not involved.

What's the Program exactly targeting?

Don't worry, I don't think the NSA is interested in the pictures of your last garden party or your journey in Spain looking for sunny weather. Since it was issued by President George Bush after the al-Qaeda attacks of Sept. 11, 2011, it's about terrorism, espionage or nuclear proliferation. At least... that's what I thought.

However, on Monday 10th, Edward Snowden (the 29 year-old ex CIA member) released a video (click here) on Youtube from its Hotel in Hong-Kong. He mentioned important facts:

-        'Even if you're not doing anything wrong, you're being watched and recorded (...)'

-        'Any analyst at any time can target anyone. Any selector. Anywhere. I, sitting at my desk certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had personal email'.

-        'I have no intention of hiding who I am because I know I have done nothing wrong. I understand that I will be made to suffer for my actions but I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant'

-        ‘My sole motive is to inform the public as to that which is done in their name and that which is done against them'

-        'What they're doing an existential threat to democracy'

-        'I feel satisfied that this was all worth it. I have no regrets'.

These statements show the eternal debate between national security vs. personal privacy. I personally think that if you work for the biggest intelligence agency where you collect data for the protection of your country, you are supposed to keep this information secret (I am sure that it was clearly mentioned in its confidential agreement). Revealing a part of it, it's breaking the law (the contract) and is considered treason.

According the New York Times, 'The Hong Kong authorities have worked closely with United States law enforcement agencies for years and have usually accepted extradition requests under longstanding agreements (...)'.

            Taking into account that the Justice Department has just started building a criminal case against him, the only remaining option for Mr. Snowden is to try to seek political asylum in Iceland, Venezuela or Ecuador. Perhaps is he in possession of hundred of other classified documents that are as important as the PRISM program... the story is not over!!!

Check this recent interesting interview from Bloomberg Law: here