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n recent days, the United States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and German text so "that references to privacy rights are referring explicitly to States' obligations under ICCPR and remove suggestion that such obligations apply extraterritorially." In other words: America wants to make sure it preserves the right to spy overseas. The U.S. paper also calls on governments to promote amendments that would weaken Brazil's and Germany's contention that some "highly intrusive" acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance -- which the American government claims it never, ever does. Collecting information on tens of millions of people around the world is perfectly acceptable, the Obama administration has repeatedly said. It's authorized by U.S. statute, overseen by Congress, and approved by American courts.

"Recall that the USG's [U.S. government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the paper states. "So a paragraph expressing concern about illegal surveillance is one with which we would agree." The privacy resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it is important because it creates the basis for an international consensus -- referred to as "soft law" -- that over time will make it harder and harder for the United States to argue that its mass collection of foreigners' data is lawful and in conformity with human rights norms. "They want to be able to say ‘we haven't broken the law, we're not breaking the law, and we won't break the law,'" said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that "we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations."

The United States negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America's effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions. According to one diplomat, "the United States has been very much in the backseat," leaving it to its allies, Australia, Britain, and Canada, to take the lead. There is no extraterritorial obligation on states "to comply with human rights," explained one diplomat who supports the U.S. position. "The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions."

The position, according to Jamil Dakwar, the director of the American Civil Liberties Union's Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee, and the European Court have all asserted that states do have an obligation to comply with human rights laws beyond their own borders, he noted. "Governments do have obligation beyond their territories," said Dakwar, particularly in situations, like the Guantanamo Bay detention center, where the United States exercises "effective control" over the lives of the detainees. Both PoKempner and Dakwar suggested that courts may also judge that the U.S. dominance of the Internet places special legal obligations on it to ensure the protection of users' human rights.

"It's clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States," he said. "To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries territory. It's going back to the idea that you can create a legal black hole where there is no applicable law." There were signs emerging on Wednesday that America may have been making ground in pressing the Brazilians and Germans to back on one of its toughest provisions. In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it simply deep "concern at the negative impact" that extraterritorial surveillance "may have on the exercise of and enjoyment of human rights." The U.S., however, has not yet indicated it would support the revised proposal.

The concession "is regrettable. But it’s not the end of the battle by any means," said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America's spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.

The NSA, like GCHQ, has studied Kaspersky Lab’s software for weaknesses. In 2008, an NSA research team discovered that Kaspersky software was transmitting sensitive user information back to the company’s servers, which could easily be intercepted and employed to track users, according to a draft of a top-secret report. The information was embedded in “User-Agent” strings included in the headers of Hypertext Transfer Protocol, or HTTP, requests. Such headers are typically sent at the beginning of a web request to identify the type of software and computer issuing the request.

According to the draft report, NSA researchers found that the strings could be used to uniquely identify the computing devices belonging to Kaspersky customers. They determined that “Kaspersky User-Agent strings contain encoded versions of the Kaspersky serial numbers and that part of the User-Agent string can be used as a machine identifier.” They also noted that the “User-Agent” strings may contain “information about services contracted for or configurations.” Such data could be used to passively track a computer to determine if a target is running Kaspersky software and thus potentially susceptible to a particular attack without risking detection.

Another way the NSA targets foreign anti-virus companies appears to be to monitor their email traffic for reports of new vulnerabilities and malware. A 2010 presentation on “Project CAMBERDADA” shows the content of an email flagging a malware file, which was sent to various anti-virus companies by François Picard of the Montréal-based consulting and web hosting company NewRoma. The presentation of the email suggests that the NSA is reading such messages to discover new flaws in anti-virus software. Picard, contacted by The Intercept, was unaware his email had fallen into the hands of the NSA. He said that he regularly sends out notification of new viruses and malware to anti-virus companies, and that he likely sent the email in question to at least two dozen such outfits. He also said he never sends such notifications to government agencies. “It is strange the NSA would show an email like mine in a presentation,” he added.

The NSA presentation goes on to state that its signals intelligence yields about 10 new “potentially malicious files per day for malware triage.” This is a tiny fraction of the hostile software that is processed. Kaspersky says it detects 325,000 new malicious files every day, and an internal GCHQ document indicates that its own system “collect[s] around 100,000,000 malware events per day.” After obtaining the files, the NSA analysts “[c]heck Kaspersky AV to see if they continue to let any of these virus files through their Anti-Virus product.” The NSA’s Tailored Access Operations unit “can repurpose the malware,” presumably before the anti-virus software has been updated to defend against the threat.

The Project CAMBERDADA presentation lists 23 additional AV companies from all over the world under “More Targets!” Those companies include Check Point software, a pioneering maker of corporate firewalls based Israel, whose government is a U.S. ally. Notably omitted are the American anti-virus brands McAfee and Symantec and the British company Sophos.

As government spies have sought to evade anti-virus software, the anti-virus firms themselves have exposed malware created by government spies. Among them, Kaspersky appears to be the sharpest thorn in the side of government hackers. In the past few years, the company has proven to be a prolific hunter of state-sponsored malware, playing a role in the discovery and/or analysis of various pieces of malware reportedly linked to government hackers, including the superviruses Flame, which Kaspersky flagged in 2012; Gauss, also detected in 2012; Stuxnet, discovered by another company in 2010; and Regin, revealed by Symantec. In February, the Russian firm announced its biggest find yet: the “Equation Group,” an organization that has deployed espionage tools widely believed to have been created by the NSA and hidden on hard drives from leading brands, according to Kaspersky. In a report, the company called it “the most advanced threat actor we have seen” and “probably one of the most sophisticated cyber attack groups in the world.”

Hacks deployed by the Equation Group operated undetected for as long as 14 to 19 years, burrowing into the hard drive firmware of sensitive computer systems around the world, according to Kaspersky. Governments, militaries, technology companies, nuclear research centers, media outlets and financial institutions in 30 countries were among those reportedly infected. Kaspersky estimates that the Equation Group could have implants in tens of thousands of computers, but documents published last year by The Intercept suggest the NSA was scaling up their implant capabilities to potentially infect millions of computers with malware. Kaspersky’s adversarial relationship with Western intelligence services is sometimes framed in more sinister terms; the firm has been accused of working too closely with the Russian intelligence service FSB. That accusation is partly due to the company’s apparent success in uncovering NSA malware, and partly due to the fact that its founder, Eugene Kaspersky, was educated by a KGB-backed school in the 1980s before working for the Russian military.

Kaspersky has repeatedly denied the insinuations and accusations. In a recent blog post, responding to a Bloomberg article, he complained that his company was being subjected to “sensationalist … conspiracy theories,” sarcastically noting that “for some reason they forgot our reports” on an array of malware that trace back to Russian developers. He continued, “It’s very hard for a company with Russian roots to become successful in the U.S., European and other markets. Nobody trusts us — by default.”

Documents published with this article: Kaspersky User-Agent Strings — NSA Project CAMBERDADA — NSA NDIST — GCHQ’s Developing Cyber Defence Mission GCHQ Application for Renewal of Warrant GPW/1160 Software Reverse Engineering — GCHQ Reverse Engineering — GCHQ Wiki Malware Analysis & Reverse Engineering — ACNO Skill Levels — GCHQ

While Gemalto was indeed another casualty in Western governments’ sweeping effort to gather as much global intelligence advantage as possible, the leaked documents make clear that the company was specifically targeted. According to the materials published Thursday, GCHQ used a specific codename — DAPINO GAMMA — to refer to the operations against Gemalto. The spies also actively penetrated the email and social media accounts of Gemalto employees across the world in an effort to steal the company’s encryption keys. Evidence of the Gemalto breach rattled the digital security community. “Almost everyone in the world carries cell phones and this is an unprecedented mass attack on the privacy of citizens worldwide,” said Greg Nojeim, senior counsel at the Center for Democracy & Technology, a non-profit that advocates for digital privacy and free online expression. “While there is certainly value in targeted surveillance of cell phone communications, this coordinated subversion of the trusted technical security infrastructure of cell phones means the US and British governments now have easy access to our mobile communications.”

For Gemalto, evidence that their vaunted security systems and the privacy of customers had been compromised by the world’s top spy agencies made an immediate financial impact. The company’s shares took a dive on the Paris bourse Friday, falling $500 million. In the U.S., Gemalto’s shares fell as much 10 percent Friday morning. They had recovered somewhat — down 4 percent — by the close of trading on the Euronext stock exchange. Analysts at Dutch financial services company Rabobank speculated in a research note that Gemalto could be forced to recall “a large number” of SIM cards. The French daily L’Express noted today that Gemalto board member Alex Mandl was a founding trustee of the CIA-funded venture capital firm In-Q-Tel. Mandl resigned from In-Q-Tel’s board in 2002, when he was appointed CEO of Gemplus, which later merged with another company to become Gemalto. But the CIA connection still dogged Mandl, with the French press regularly insinuating that American spies could infiltrate the company. In 2003, a group of French lawmakers tried unsuccessfully to create a commission to investigate Gemplus’s ties to the CIA and its implications for the security of SIM cards. Mandl, an Austrian-American businessman who was once a top executive at AT&T, has denied that he had any relationship with the CIA beyond In-Q-Tel. In 2002, he said he did not even have a security clearance.

AT&T, T-Mobile and Verizon could not be reached for comment Friday. Sprint declined to comment. Vodafone, the world’s second largest telecom provider by subscribers and a customer of Gemalto, said in a statement, “[W]e have no further details of these allegations which are industrywide in nature and are not focused on any one mobile operator. We will support industry bodies and Gemalto in their investigations.” Deutsche Telekom AG, a German company, said it has changed encryption algorithms in its Gemalto SIM cards. “We currently have no knowledge that this additional protection mechanism has been compromised,” the company said in a statement. “However, we cannot rule out this completely.”

Update: Asked about the SIM card heist, White House press secretary Josh Earnest said he did not expect the news would hurt relations with the tech industry: “It’s hard for me to imagine that there are a lot of technology executives that are out there that are in a position of saying that they hope that people who wish harm to this country will be able to use their technology to do so. So, I do think in fact that there are opportunities for the private sector and the federal government to coordinate and to cooperate on these efforts, both to keep the country safe, but also to protect our civil liberties.”

Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when. Media inquiries were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel. “There is pending litigation that deals with a lot of the same questions you’re asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.” FBI lawyers are working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it.

There is indeed a significant case currently before the federal appeals court in San Francisco. Oral arguments were in October. A decision could come any time. But in that case, the Electronic Frontier Foundation (EFF), which is representing two unnamed communications companies that received NSLs, is calling for the entire NSL statute to be thrown out as unconstitutional — not for a tweak to the gag. And it has a March 2013 district court ruling in its favor. “The gag is a prior restraint under the First Amendment, and prior restraints have to meet an extremely high burden,” said Andrew Crocker, a legal fellow at EFF. That means going to court and meeting the burden of proof — not just signing a letter. Or as the Cato Institute’s Julian Sanchez put it, “To have such a low bar for denying persons or companies the right to speak about government orders they have been served with is anathema. And it is not very good for accountability.”

In a separate case, a wide range of media companies (including First Look Media, the non-profit digital media venture that produces The Intercept) are supporting a lawsuit filed by Twitter, demanding the right to say specifically how many NSLs it has received. But simply releasing companies from a gag doesn’t assure the kind of accountability that privacy advocates are saying is required by the Constitution. “What the public has to remember is a NSL is asking for your information, but it’s not asking it from you,” said Michael German, a former FBI agent who is now a fellow with the Brennan Center for Justice. “The vast majority of these things go to the very large telecommunications and financial companies who have a large stake in maintaining a good relationship with the government because they’re heavily regulated entities.”

So, German said, “the number of NSLs that would be exposed as a result of the release of the gag order is probably very few. The person whose records are being obtained is the one who should receive some notification.” A time limit on gags going forward also raises the question of whether past gag orders will now be withdrawn. “Obviously there are at this point literally hundreds of thousands of National Security Letters that are more than three years old,” said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back you go, “it becomes increasingly implausible that a significant percentage of those are going to entail some dire national security risk.” The NSL program has a troubled history. The absolute secrecy of the program and resulting lack of accountability led to systemic abuse as documented by repeated inspector-general investigations, including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information without any determination that the telephone numbers were relevant to authorized national security investigations.

Obama’s own hand-selected “Review Group on Intelligence and Communications Technologies” recommended in December 2013 that NSLs should only be issued after judicial review — just like warrants — and that any gag should end within 180 days barring judicial re-approval. But FBI director James Comey objected to the idea, calling NSLs “a very important tool that is essential to the work we do.” His argument evidently prevailed with Obama.

NSLs have managed to stay largely under the American public’s radar. But, Crocker says, “pretty much every time I bring it up and give the thumbnail, people are shocked. Then you go into how many are issued every year, and they go crazy.” Want to send me your old NSL and see if we can set a new precedent? Here’s how to reach me. And here’s how to leak to me.