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The US intelligence community’s broadest surveillance authorities are enshrined in Executive Order 12333, which primarily covers the interception of electronic communications overseas. The Order authorizes the collection, retention, and dissemination of “foreign intelligence” information, which includes information “relating to the capabilities, intentions or activities of foreign powers, organizations or persons.” In other words, so long as they are operating outside the US, intelligence agencies are authorized to collect information about any foreign person — and, of course, any Americans with whom they communicate. The NSA has conceded that EO 12333 is the basis of most of its surveillance. While public information about these programs is limited, a few highlights give a sense of the breadth of EO 12333 operations: The NSA gathers information about every cell phone call made to, from, and within the Bahamas, Mexico, Kenya, the Philippines, and Afghanistan, and possibly other countries. A joint US-UK program tapped into the cables connecting internal Yahoo and Google networks to gather e-mail address books and contact lists from their customers. Another US-UK collaboration collected images from video chats among Yahoo users and possibly other webcam services. The NSA collects both the content and metadata of hundreds of millions of text messages from around the world. By tapping into the cables that connect global networks, the NSA has created a database of the location of hundreds of millions of mobile phones outside the US.

Given its scope, EO 12333 is clearly critical to those seeking serious surveillance reform. The path to reform is, however, less clear. There is no sunset provision that requires action by Congress and creates an opportunity for exposing privacy risks. Even in the unlikely event that Congress was inclined to intervene, it would have to address questions about the extent of its constitutional authority to regulate overseas surveillance. To the best of my knowledge, there is no litigation challenging EO 12333 and the government doesn’t give notice to criminal defendants when it uses evidence derived from surveillance under the order, so the likelihood of a court ruling is slim. The Privacy and Civil Liberties Oversight Board is currently reviewing two programs under EO 12333, but it is anticipated that much of its report will be classified (although it has promised a less detailed unclassified version as well). While the short-term outlook for additional surveillance reform is challenging, from a longer-term perspective, the distinctions that our law makes between Americans and non-Americans and between domestic and foreign collection cannot stand indefinitely. If the Fourth Amendment is to meaningfully protect Americans’ privacy, the courts and Congress must come to grips with this reality.

Both Litt and De spoke hours before the Senate intelligence committee was due to begin a second day of considering chairwoman Dianne Feinstein’s proposal to increase transparency around the NSA’s surveillance activities. A Tuesday afternoon markup session of the bill – whose text is not yet public – went uncompleted. Feinstein, previously an unequivocal supporter of the NSA, unexpectedly criticized the agency’s surveillance on foreign leaders, a relatively traditional surveillance function. Feinstein on Monday declared herself “totally opposed” to the collection and suggested her oversight committee was not “fully informed” of the practice. A similar rift has emerged between NSA and the White House over how much President Obama knew about the spying, which US officials have said does not currently take place and will not resume. Litt appeared to concede that Obama himself may not have known about spying on Merkel, but contended that the White House and Senate intelligence committee had all the information necessary to understand it was taking place.

“I completely disagree with the proposition that the fact that the president and the chairman of the Senate intelligence committee didn’t know every single one of these selectors the NSA was tasking means there is ineffective oversight,” Litt said. “What the president knew and what the Senate intelligence committee knows: they know what our intelligence priorities are. Those are set annually through the interagency process. That says, here’s the kind of information we need to collect. And that gets sent out to the intelligence community and then the intelligence community, through a process that works down through the ranks, figures out what’s the best way to select that. “It’s very easy in hindsight to say, well, this particular selector was sensitive and so the president should have been told that,” Litt continued. “That’s always true in hindsight. Virtually everything we do, if it comes out, is going to be embarrassing.”

A Justice Department spokesman told Reuters Wednesday that “all of the information has been deleted” and that the DEA was “no longer collecting bulk telephony metadata from U.S. service providers.” What the spokesman did not say is that the DEA has access to troves of phone records from multiple sources — and not all of them are obtained from U.S. service providers. As The Intercept’s reporting on Project Crisscross revealed, the DEA has had large-scale access to data covertly collected by the NSA, CIA and other agencies for years. According to NSA documents obtained by Snowden, the DEA can sift through billions of metadata records collected by other agencies about emails, phone calls, faxes, Internet chats and text messages using systems named ICREACH and CRISSCROSS/PROTON.

Notably, the DEA spying reported by USA Today encompassed phone records collected by the DEA using administrative subpoenas to obtain data from phone companies without the approval of a judge. The phone records collected by the agency as part of Project Hemisphere and the data stored on the DICE system were also collected through subpoenas and warrants. But ICREACH alone was designed to handle two to five billion new records every day — the majority of them not collected using any conventional search warrant or a subpoena. Instead, most of the data accessible to the DEA through ICREACH is vacuumed up by the NSA using Executive Order 12333, a controversial Reagan-era presidential directive that underpins several NSA bulk surveillance operations that monitor communications overseas. The 12333 surveillance takes place with no court oversight and has received minimal Congressional scrutiny because it is targeted at foreign, not domestic, communication networks.

This means that some of the DEA’s access to mass surveillance data — records collected in bulk through subpoenas or warrants — may have been shut down by Holder in 2013. But it is likely that the agency still has the ability to tap into other huge data repositories, and questions remain about how that access is being used.

The Intercept has confirmed that as of 2013, the NSA was actively using MYSTIC to gather cell-phone metadata in five countries, and was intercepting voice data in two of them. Documents show that the NSA has been generating intelligence reports from MYSTIC surveillance in the Bahamas, Mexico, Kenya, the Philippines, and one other country, which The Intercept is not naming in response to specific, credible concerns that doing so could lead to increased violence. The more expansive full-take recording capability has been deployed in both the Bahamas and the unnamed country. MYSTIC was established in 2009 by the NSA’s Special Source Operations division, which works with corporate partners to conduct surveillance. Documents in the Snowden archive describe it as a “program for embedded collection systems overtly installed on target networks, predominantly for the collection and processing of wireless/mobile communications networks.”

If an entire nation’s cell-phone calls were a menu of TV shows, MYSTIC would be a cable programming guide showing which channels offer which shows, and when. SOMALGET would be the DVR that automatically records every show on every channel and stores them for a month. MYSTIC provides the access; SOMALGET provides the massive amounts of storage needed to archive all those calls so that analysts can listen to them at will after the fact. According to one NSA document, SOMALGET is “deployed against entire networks” in the Bahamas and the second country, and processes “over 100 million call events per day.”

When U.S. drug agents need to tap a phone of a suspected drug kingpin in another country, they call up their counterparts and ask them set up an intercept. To facilitate those taps, many nations – including the Bahamas – have hired contractors who install and maintain so-called lawful intercept equipment on their telecommunications. With SOMALGET, it appears that the NSA has used the access those contractors developed to secretly mine the country’s entire phone system for “signals intelligence” –recording every mobile call in the country. “Host countries,” the document notes, “are not aware of NSA’s SIGINT collection.” “Lawful intercept systems engineer communications vulnerabilities into networks, forcing the carriers to weaken,” says Christopher Soghoian, the principal technologist for the American Civil Liberties Union. “Host governments really should be thinking twice before they accept one of these Trojan horses.”

The DEA has long been in a unique position to help the NSA gain backdoor access to foreign phone networks. “DEA has close relationships with foreign government counterparts and vetted foreign partners,” the manager of the NSA’s drug-war efforts reported in a 2004 memo. Indeed, with more than 80 international offices, the DEA is one of the most widely deployed U.S. agencies around the globe. But what many foreign governments fail to realize is that U.S. drug agents don’t confine themselves to simply fighting narcotics traffickers. “DEA is actually one of the biggest spy operations there is,” says Finn Selander, a former DEA special agent who works with the drug-reform advocacy group Law Enforcement Against Prohibition. “Our mandate is not just drugs. We collect intelligence.” What’s more, Selander adds, the NSA has aided the DEA for years on surveillance operations. “On our reports, there’s drug information and then there’s non-drug information,” he says. “So countries let us in because they don’t view us, really, as a spy organization.”

“I seriously don’t think that would be your run-of-the-mill legal interception equipment,” says the former engineer, who worked with hardware and software that typically maxed out at 1,000 intercepts. The NSA, by contrast, is recording and storing tens of millions of calls – “mass surveillance,” he observes, that goes far beyond the standard practices for lawful interception recognized around the world. The Bahamas Telecommunications Company did not respond to repeated phone calls and emails.

The proliferation of private contractors has apparently provided the NSA with direct access to foreign phone networks. According to the documents, MYSTIC draws its data from “collection systems” that were overtly installed on the telecommunications systems of targeted countries, apparently by corporate “partners” cooperating with the NSA. One NSA document spells out that “the overt purpose” given for accessing foreign telecommunications systems is “for legitimate commercial service for the Telco’s themselves.” But the same document adds: “Our covert mission is the provision of SIGINT,” or signals intelligence.

According to the NSA documents, MYSTIC targets calls and other data transmitted on  Global System for Mobile Communications networks – the primary framework used for cell phone calls worldwide. In the Philippines, MYSTIC collects “GSM, Short Message Service (SMS) and Call Detail Records” via access provided by a “DSD asset in a Philippine provider site.” (The DSD refers to the Defence Signals Directorate, an arm of Australian intelligence. The Australian consulate in New York declined to comment.) The operation in Kenya is “sponsored” by the CIA, according to the documents, and collects “GSM metadata with the potential for content at a later date.” The Mexican operation is likewise sponsored by the CIA. The documents don’t say how or under what pretenses the agency is gathering call data in those countries. In the Bahamas, the documents say, the NSA intercepts GSM data that is transmitted over what is known as the “A link”–or “A interface”–a core component of many mobile networks. The A link transfers data between two crucial parts of GSM networks – the base station subsystem, where phones in the field communicate with cell towers, and the network subsystem, which routes calls and text messages to the appropriate destination. “It’s where all of the telephone traffic goes,” says the former engineer.

When U.S. drug agents wiretap a country’s phone networks, they must comply with the host country’s laws and work alongside their law enforcement counterparts. “The way DEA works with our allies – it could be Bahamas or Jamaica or anywhere – the host country has to invite us,” says Margolis. “We come in and provide the support, but they do the intercept themselves.” The Bahamas’ Listening Devices Act requires all wiretaps to be authorized in writing either by the minister of national security or the police commissioner in consultation with the attorney general. The individuals to be targeted must be named. Under the nation’s Data Protection Act, personal data may only be “collected by means which are both lawful and fair in the circumstances of the case.” The office of the Bahamian data protection commissioner, which administers the act, said in a statement that it “was not aware of the matter you raise.” Countries like the Bahamas don’t install lawful intercepts on their own. With the adoption of international standards, a thriving market has emerged for private firms that are contracted by foreign governments to install and maintain lawful intercept equipment. Currently valued at more than $128 million, the global market for private interception services is expected to skyrocket to more than $970 million within the next four years, according to a 2013 report from the research firm Markets and Markets.

If the U.S. government wanted to make a case for surveillance in the Bahamas, it could point to the country’s status as a leading haven for tax cheats, corporate shell games, and a wide array of black-market traffickers. The State Department considers the Bahamas both a “major drug-transit country” and a “major money laundering country” (a designation it shares with more than 60 other nations, including the U.S.). According to the International Monetary Fund, as of 2011 the Bahamas was home to 271 banks and trust companies with active licenses. At the time, the Bahamian banks held $595 billion in U.S. assets. But the NSA documents don’t reflect a concerted focus on the money launderers and powerful financial institutions – including numerous Western banks – that underpin the black market for narcotics in the Bahamas. Instead, an internal NSA presentation from 2013 recounts with pride how analysts used SOMALGET to locate an individual who “arranged Mexico-to-United States marijuana shipments” through the U.S. Postal Service.

The presentation doesn’t say whether the NSA shared the information with the DEA. But the drug agency’s Special Operations Divison has come under fire for improperly using classified information obtained by the NSA to launch criminal investigations – and then creating false narratives to mislead courts about how the investigations began. The tactic – known as parallel construction – was first reported by Reuters last year, and is now under investigation by the Justice Department’s inspector general. So: Beyond a desire to bust island pot dealers, why would the NSA choose to apply a powerful collection tool such as SOMALGET against the Bahamas, which poses virtually no threat to the United States? The answer may lie in a document that characterizes the Bahamas operation as a “test bed for system deployments, capabilities, and improvements” to SOMALGET. The country’s small population – fewer than 400,000 residents – provides a manageable sample to try out the surveillance system’s features. Since SOMALGET is also operational in one other country, the Bahamas may be used as a sort of guinea pig to beta-test improvements and alterations without impacting the system’s operations elsewhere. “From an engineering point of view it makes perfect sense,” says the former engineer. “Absolutely.”

SOMALGET operates under Executive Order 12333, a Reagan-era rule establishing wide latitude for the NSA and other intelligence agencies to spy on other countries, as long as the attorney general is convinced the efforts are aimed at gathering foreign intelligence. In 2000, the NSA assured Congress that all electronic surveillance performed under 12333 “must be conducted in a manner that minimizes the acquisition, retention, and dissemination of information about unconsenting U.S. persons.” In reality, many legal experts point out, the lack of judicial oversight or criminal penalties for violating the order render the guidelines meaningless. “I think it would be open, whether it was legal or not,” says German, the former FBI agent. “Because we don’t have all the facts about how they’re doing it. For a long time, the NSA has been interpreting their authority in the broadest possible way, even beyond what an objective observer would say was reasonable.” “An American citizen has Fourth Amendment rights wherever they are,” adds Kurt Opsahl, an attorney with the Electronic Frontier Foundation. “Nevertheless, there have certainly been a number of things published over the last year which suggest that there are broad, sweeping programs that the NSA and other government agencies are doing abroad that sweep up the communications of Americans.”

Legal or not, the NSA’s covert surveillance of an entire nation suggests that it will take more than the president’s tepid “limits” to rein in the ambitions of the intelligence community. “It’s almost like they have this mentality – if we can, we will,” says German. “There’s no analysis of the long-term risks of doing it, no analysis of whether it’s actually worth the effort, no analysis of whether we couldn’t take those resources and actually put them on real threats and do more good.” It’s not surprising, German adds, that the government’s covert program in the Bahamas didn’t remain covert. “The undermining of international law and international cooperation is such a long-term negative result of these programs that they had to know would eventually be exposed, whether through a leak, whether through a spy, whether through an accident,” he says. “Nothing stays secret forever. It really shows the arrogance of these agencies – they were just going to do what they were going to do, and they weren’t really going to consider any other important aspects of how our long-term security needs to be addressed.”

This language is broad, circular, and technically incoherent, so it takes some effort to parse appropriately. When the minimization procedures were disclosed in 2013, this language was interpreted by outside commentators to mean that NSA may keep all encrypted data that has been incidentally collected under Section 702 for at least as long as is necessary to decrypt that data. Is this the correct interpretation? I think so. It is important to realize that the language above isn’t just broad. It seems purposefully broad. The part regarding relevance seems to mirror the rationale NSA has used to justify its bulk phone records collection program. Under that program, all phone records were relevant because some of those records could be valuable to terrorism investigations and (allegedly) it isn’t possible to collect only those valuable records. This is the “to find a needle a haystack, you first have to have the haystack” argument. The same argument could be applied to encrypted data and might be at play here.

This exception doesn’t just apply to encrypted data that might be relevant to a current foreign intelligence investigation. It also applies to cases in which the encrypted data is likely to become relevant to a future intelligence requirement. This is some remarkably generous language. It seems one could justify keeping any type of encrypted data under this exception. Upon close reading, it is difficult to avoid the conclusion that these procedures were written carefully to allow NSA to collect and keep a broad category of encrypted data under the rationale that this data might contain the communications of NSA targets and that it might be decrypted in the future. If NSA isn’t doing this today, then whoever wrote these minimization procedures wanted to at least ensure that NSA has the authority to do this tomorrow.

There are a few additional observations that are worth making regarding these nominally new retention guidelines and Section 702 collection. First, the concept of incidental collection as it has typically been used makes very little sense when applied to encrypted data. The way that NSA’s Section 702 upstream “about” collection is understood to work is that technology installed on the network does some sort of pattern match on Internet traffic; say that an NSA target uses example@gmail.com to communicate. NSA would then search content of emails for references to example@gmail.com. This could notionally result in a lot of incidental collection of U.S. persons’ communications whenever the email that references example@gmail.com is somehow mixed together with emails that have nothing to do with the target. This type of incidental collection isn’t possible when the data is encrypted because it won’t be possible to search and find example@gmail.com in the body of an email. Instead, example@gmail.com will have been turned into some alternative, indecipherable string of bits on the network. Incidental collection shouldn’t occur because the pattern match can’t occur in the first place. This demonstrates that, when communications are encrypted, it will be much harder for NSA to search Internet traffic for a unique ID associated with a specific target.

This lends further credence to the conclusion above: rather than doing targeted collection against specific individuals, NSA is collecting, or plans to collect, a broad class of data that is encrypted. For example, NSA might collect all PGP encrypted emails or all Tor traffic. In those cases, NSA could search Internet traffic for patterns associated with specific types of communications, rather than specific individuals’ communications. This would technically meet the definition of incidental collection because such activity would result in the collection of communications of U.S. persons who aren’t the actual targets of surveillance. Collection of all Tor traffic would entail a lot of this “incidental” collection because the communications of NSA targets would be mixed with the communications of a large number of non-target U.S. persons. However, this “incidental” collection is inconsistent with how the term is typically used, which is to refer to over-collection resulting from targeted surveillance programs. If NSA were collecting all Tor traffic, that activity wouldn’t actually be targeted, and so any resulting over-collection wouldn’t actually be incidental. Moreover, greater use of encryption by the general public would result in an ever-growing amount of this type of incidental collection.

This type of collection would also be inconsistent with representations of Section 702 upstream collection that have been made to the public and to Congress. Intelligence officials have repeatedly suggested that search terms used as part of this program have a high degree of specificity. They have also argued that the program is an example of targeted rather than bulk collection. ODNI General Counsel Robert Litt, in a March 2014 meeting before the Privacy and Civil Liberties Oversight Board, stated that “there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.” The collection of Internet traffic based on patterns associated with types of communications would be bulk collection; more akin to NSA’s collection of phone records en mass than it is to targeted collection focused on specific individuals. Moreover, this type of collection would certainly fall within the definition of bulk collection provided just last week by the National Academy of Sciences: “collection in which a significant portion of the retained data pertains to identifiers that are not targets at the time of collection.”

The Section 702 minimization procedures, which will serve as a template for any new retention guidelines established for E.O. 12333 collection, create a large loophole for encrypted communications. With everything from email to Internet browsing to real-time communications moving to encrypted formats, an ever-growing amount of Internet traffic will fall within this loophole.

NSA surveillance under Executive Order 12333 is separate from the agency’s higher profile bulk collection of Americans’ phone records, which ended last year. It also occurs under separate legal powers than a controversial provision of the 2008 update to the Foreign Intelligence Surveillance Act, which comes up for renewal at the end of 2017.The executive order targets foreigners, but can “incidentally” pick up data about Americans if their activity on the Internet crosses international borders, Richards acknowledged.“Our procedures are designed to say: There are occasions when you are going to get U.S. persons,” she said, “and when you get those U.S. persons, here’s the rules.”

Richards is the agency’s first ever civil liberties officer. She was hired in early 2014, on the heels of fallout from Edward Snowden’s leaks about the spy agency. 

And as it happens, it comes right in the middle of a couple pieces I’m writing about another linguistic perversion, the non-denial denial. (My exegesis of CIA director John Brennan’s latest ran on Friday; more examples from recent history should be out tomorrow.) The intelligence community’s redefinition of terms inspired the ACLU’s Jameel Jaffer and Brett Max Kaufman last year to author a ”lexicon for decoding the true meaning of what NSA officials say” which includes nifty non-intuitive recastings of terms such as surveillance, relevant, targeted, incidental and inadvertent. There’s also a “Guide to the Deceptions, Misinformation, and Word Games Officials Use to Mislead the Public About NSA Surveillance” that Trevor Timm wrote for the Electronic Frontier Foundation, and Mike Masnick’s more tongue in check “NSA-To-English Dictionary” from Techdirt.

The report also details the ODNI’s and IC’s plans for the future, including: (1) Working with Congress to reauthorize bulk collection under Section 215. (2) Updating agency guidelines under Executive Order 12333 “to protect the privacy and civil liberties of U.S. persons.” (3) Producing another annual report in January 2016 on the IC’s progress in implementing signals intelligence reforms. These plans raise more questions than they answer. Given the considerable doubts about Section 215’s effectiveness, why is the ODNI pushing for its reauthorization? And what will the ODNI consider appropriate privacy protections under Executive Order 12333?

But that’s not what the government told the Second Circuit, and it’s not what the Second Circuit has now suggested is the law. Second, the Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir. According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something. Rizzo explains that the MON authorizes targeted killings of suspected terrorists by the CIA, and in his new book, Power Wars, Charlie Savage reports that the MON is the original source of the controversial (and legally novel) “continuing and imminent threat” standard the government uses to govern the lethal targeting of individuals outside of recognized battlefields. The MON is also likely to have authorized an end run around the assassination “ban” in Executive Order 12333 — a legal maneuver that is discussed in, but almost entirely redacted from, an earlier OLC analysis of targeted killing.

In yesterday’s opinion, the Second Circuit upheld the government’s withholding of a 2002 OLC memorandum that “concerns Executive Order 12333,” which almost certainly analyzes the effect of the September 17 MON, as well as of five other memoranda that “discuss another document that remains entitled to protection.” If indeed that “document” is the MON, it would seem to be yet another case of what the DC Circuit pointedly criticized, in a 2013 opinion, as the granting of judicial “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” In that case, the DC Circuit went on to quote Justice Frankfurter: “‘There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men’ and women.” Last year, the Second Circuit took that admonishment to heart when it published the July 2010 OLC memorandum. Unfortunately, yesterday, rather than once again opening the country’s eyes to the law our government is applying behind closed doors, the Second Circuit closed its own.

Feinstein included an interesting aside in her speech. “Let me note: because the CIA has refused to answer the questions in my January 23 letter, and the CIA inspector general review is ongoing, I have limited information about exactly what the CIA did in conducting its search.”

Also: remember that earlier this year, in response to a question from Senator Bernie Sanders, the National Security Agency did not expressly deny spying on Congress. The NSA may just have been being careful with its language, reasoning that since bulk data collection exists, perhaps members of Congress were caught up in it. But the question remains: if the CIA felt justified spying on Senate computers, may it have listened in on phone calls as well?

Feinstein’s grave concerns were echoed Tuesday morning by Senator Patrick Leahy, chair of the Senate Judiciary Committee. “This is not just about getting to the truth of the CIA’s shameful use of torture. This is also about the core founding principle of the separation of powers, and the future of this institution and its oversight role,” Leahy said in a statement. “The Senate is bigger than any one Senator. Senators come and go, but the Senate endures. The members of the Senate must stand up in defense of this institution, the Constitution, and the values upon which this nation was founded.”

Underlying this constitutional crisis is a desire by many at the CIA to sweep the Bush-era torture abuses under the rug. That logically would be the clear motivating factor in seizing the Panetta review from Senate investigators. And Brennan wasn’t afraid to keep pushing that approach—even during the same Tuesday interview with NBC’s Mitchell in which he denied “spying” on the Senate. Brennan also said that the CIA’s history of detention and interrogation should be “put behind us.” (It should be noted, of course, that there is strong circumstantial evidence that Brennan himself was complicit in the illegal torture program when he served in the Bush administration.) In the wake of her revelations on Tuesday, Feinstein renewed her desire to declassify the Senate report. “We’re not going to stop. I intend to move to have the findings, conclusions and the executive summary of the report sent to the president for declassification and release to the American people,” she said, and suggested the findings will shock the public. “If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.”

Obama has long said he supports declassification, and it seems it will happen soon. Tuesday, Feinstein was already moving to hold a committee vote on declassification. Committee Republicans will likely oppose it, but independent Senator Angus King, the swing vote, told reporters he is inclined to vote for declassification.

Not addressed in the bill, however, are a slew of other spying authorities in use by the NSA that either directly or inadvertently target the communications of American citizens. Lawmakers offered several amendments in the days leading up to the vote that would have tackled surveillance activities laid out in Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333 — two authorities intended for foreign surveillance that have been used to collect Americans’ internet data, including online address books and buddy lists. The House Rules Committee, however, prohibited consideration of any amendment to the USA Freedom Act, claiming that any changes to the legislation would have weakened its chances of passage.

The measure now goes to the Senate where its future is uncertain. Majority Leader Mitch McConnell has declined to schedule the bill for consideration, and is instead pushing for a clean reauthorization of expiring Patriot Act provisions that includes no surveillance reforms. Senators Ron Wyden, D-Ore., and Rand Paul, R-Ky., have threated to filibuster any bill that extends the Patriot Act without also reforming the NSA.

The Nation: Explain the technical reform you mentioned. Snowden: We already see this happening. The issue I brought forward most clearly was that of mass surveillance, not of surveillance in general. It’s OK if we wiretap Osama bin Laden. I want to know what he’s planning—obviously not him nowadays, but that kind of thing. I don’t care if it’s a pope or a bin Laden. As long as investigators must go to a judge—an independent judge, a real judge, not a secret judge—and make a showing that there’s probable cause to issue a warrant, then they can do that. And that’s how it should be done. The problem is when they monitor all of us, en masse, all of the time, without any specific justification for intercepting in the first place, without any specific judicial showing that there’s a probable cause for that infringement of our rights.

Since the revelations, we have seen a massive sea change in the technological basis and makeup of the Internet. One story revealed that the NSA was unlawfully collecting data from the data centers of Google and Yahoo. They were intercepting the transactions of data centers of American companies, which should not be allowed in the first place because American companies are considered US persons, sort of, under our surveillance authorities. They say, “Well, we were doing it overseas,” but that falls under a different Reagan-era authority: EO 12333, an executive order for foreign-intelligence collection, as opposed to the ones we now use domestically. So this one isn’t even authorized by law. It’s just an old-ass piece of paper with Reagan’s signature on it, which has been updated a couple times since then. So what happened was that all of a sudden these massive, behemoth companies realized their data centers—sending hundreds of millions of people’s communications back and forth every day—were completely unprotected, electronically naked. GCHQ, the British spy agency, was listening in, and the NSA was getting the data and everything like that, because they could dodge the encryption that was typically used. Basically, the way it worked technically, you go from your phone to Facebook.com, let’s say—that link is encrypted. So if the NSA is trying to watch it here, they can’t understand it. But what these agencies discovered was, the Facebook site that your phone is connected to is just the front end of a larger corporate network—that’s not actually where the data comes from. When you ask for your Facebook page, you hit this part and it’s protected, but it has to go on this long bounce around the world to actually get what you’re asking for and go back. So what they did was just get out of the protected part and they went onto the back network. They went into the private network of these companies.

The Nation: The companies knew this? Snowden: Companies did not know it. They said, “Well, we gave the NSA the front door; we gave you the PRISM program. You could get anything you wanted from our companies anyway—all you had to do was ask us and we’re gonna give it to you.” So the companies couldn’t have imagined that the intelligence communities would break in the back door, too—but they did, because they didn’t have to deal with the same legal process as when they went through the front door. When this was published by Barton Gellman in The Washington Post and the companies were exposed, Gellman printed a great anecdote: he showed two Google engineers a slide that showed how the NSA was doing this, and the engineers “exploded in profanity.” Another example—one document I revealed was the classified inspector general’s report on a Bush surveillance operation, Stellar Wind, which basically showed that the authorities knew it was unlawful at the time. There was no statutory basis; it was happening basically on the president’s say-so and a secret authorization that no one was allowed to see. When the DOJ said, “We’re not gonna reauthorize this because it is not lawful,” Cheney—or one of Cheney’s advisers—went to Michael Hayden, director of the NSA, and said, “There is no lawful basis for this program. DOJ is not going to reauthorize it, and we don’t know what we’re going to do. Will you continue it anyway on the president’s say-so?” Hayden said yes, even though he knew it was unlawful and the DOJ was against it. Nobody has read this document because it’s like twenty-eight pages long, even though it’s incredibly important.

The big tech companies understood that the government had not only damaged American principles, it had hurt their businesses. They thought, “No one trusts our products anymore.” So they decided to fix these security flaws to secure their phones. The new iPhone has encryption that protects the contents of the phone. This means if someone steals your phone—if a hacker or something images your phone—they can’t read what’s on the phone itself, they can’t look at your pictures, they can’t see the text messages you send, and so forth. But it does not stop law enforcement from tracking your movements via geolocation on the phone if they think you are involved in a kidnapping case, for example. It does not stop law enforcement from requesting copies of your texts from the providers via warrant. It does not stop them from accessing copies of your pictures or whatever that are uploaded to, for example, Apple’s cloud service, which are still legally accessible because those are not encrypted. It only protects what’s physically on the phone. This is purely a security feature that protects against the kind of abuse that can happen with all these things being out there undetected. In response, the attorney general and the FBI director jumped on a soap box and said, “You are putting our children at risk.”

The Nation: Is there a potential conflict between massive encryption and the lawful investigation of crimes? Snowden: This is the controversy that the attorney general and the FBI director were trying to create. They were suggesting, “We have to be able to have lawful access to these devices with a warrant, but that is technically not possible on a secure device. The only way that is possible is if you compromise the security of the device by leaving a back door.” We’ve known that these back doors are not secure. I talk to cryptographers, some of the leading technologists in the world, all the time about how we can deal with these issues. It is not possible to create a back door that is only accessible, for example, to the FBI. And even if it were, you run into the same problem with international commerce: if you create a device that is famous for compromised security and it has an American back door, nobody is gonna buy it. Anyway, it’s not true that the authorities cannot access the content of the phone even if there is no back door. When I was at the NSA, we did this every single day, even on Sundays. I believe that encryption is a civic responsibility, a civic duty.

The Nation: Some years ago, The Nation did a special issue on patriotism. We asked about a hundred people how they define it. How do you define patriotism? And related to that, you’re probably the world’s most famous whistleblower, though you don’t like that term. What characterization of your role do you prefer? Snowden: What defines patriotism, for me, is the idea that one rises to act on behalf of one’s country. As I said before, that’s distinct from acting to benefit the government—a distinction that’s increasingly lost today. You’re not patriotic just because you back whoever’s in power today or their policies. You’re patriotic when you work to improve the lives of the people of your country, your community and your family. Sometimes that means making hard choices, choices that go against your personal interest. People sometimes say I broke an oath of secrecy—one of the early charges leveled against me. But it’s a fundamental misunderstanding, because there is no oath of secrecy for people who work in the intelligence community. You are asked to sign a civil agreement, called a Standard Form 312, which basically says if you disclose classified information, they can sue you; they can do this, that and the other. And you risk going to jail. But you are also asked to take an oath, and that’s the oath of service. The oath of service is not to secrecy, but to the Constitution—to protect it against all enemies, foreign and domestic. That’s the oath that I kept, that James Clapper and former NSA director Keith Alexander did not. You raise your hand and you take the oath in your class when you are on board. All government officials are made to do it who work for the intelligence agencies—at least, that’s where I took the oath.

The Nation: Creating a new system may be your transition, but it’s also a political act. Snowden: In case you haven’t noticed, I have a somewhat sneaky way of effecting political change. I don’t want to directly confront great powers, which we cannot defeat on their terms. They have more money, more clout, more airtime. We cannot be effective without a mass movement, and the American people today are too comfortable to adapt to a mass movement. But as inequality grows, the basic bonds of social fraternity are fraying—as we discussed in regard to Occupy Wall Street. As tensions increase, people will become more willing to engage in protest. But that moment is not now.

The Nation: You really think that if you could go home tomorrow with complete immunity, there wouldn’t be irresistible pressure on you to become a spokesperson, even an activist, on behalf of our rights and liberties? Indeed, wouldn’t that now be your duty? Snowden: But the idea for me now—because I’m not a politician, and I do not think I am as effective in this way as people who actually prepare for it—is to focus on technical reform, because I speak the language of technology. I spoke with Tim Berners-Lee, the guy who invented the World Wide Web. We agree on the necessity for this generation to create what he calls the Magna Carta for the Internet. We want to say what “digital rights” should be. What values should we be protecting, and how do we assert them? What I can do—because I am a technologist, and because I actually understand how this stuff works under the hood—is to help create the new systems that reflect our values. Of course I want to see political reform in the United States. But we could pass the best surveillance reforms, the best privacy protections in the history of the world, in the United States, and it would have zero impact internationally. Zero impact in China and in every other country, because of their national laws—they won’t recognize our reforms; they’ll continue doing their own thing. But if someone creates a reformed technical system today—technical standards must be identical around the world for them to function together.

As for labeling someone a whistleblower, I think it does them—it does all of us—a disservice, because it “otherizes” us. Using the language of heroism, calling Daniel Ellsberg a hero, and calling the other people who made great sacrifices heroes—even though what they have done is heroic—is to distinguish them from the civic duty they performed, and excuses the rest of us from the same civic duty to speak out when we see something wrong, when we witness our government engaging in serious crimes, abusing power, engaging in massive historic violations of the Constitution of the United States. We have to speak out or we are party to that bad action.

The Nation: Considering your personal experience—the risks you took, and now your fate here in Moscow—do you think other young men or women will be inspired or discouraged from doing what you did? Snowden: Chelsea Manning got thirty-five years in prison, while I’m still free. I talk to people in the ACLU office in New York all the time. I’m able to participate in the debate and to campaign for reform. I’m just the first to come forward in the manner that I did and succeed. When governments go too far to punish people for actions that are dissent rather than a real threat to the nation, they risk delegitimizing not just their systems of justice, but the legitimacy of the government itself. Because when they bring political charges against people for acts that were clearly at least intended to work in the public interest, they deny them the opportunity to mount a public-interest defense. The charges they brought against me, for example, explicitly denied my ability to make a public-interest defense. There were no whistleblower protections that would’ve protected me—and that’s known to everybody in the intelligence community. There are no proper channels for making this information available when the system fails comprehensively.

The government would assert that individuals who are aware of serious wrongdoing in the intelligence community should bring their concerns to the people most responsible for that wrongdoing, and rely on those people to correct the problems that those people themselves authorized. Going all the way back to Daniel Ellsberg, it is clear that the government is not concerned with damage to national security, because in none of these cases was there damage. At the trial of Chelsea Manning, the government could point to no case of specific damage that had been caused by the massive revelation of classified information. The charges are a reaction to the government’s embarrassment more than genuine concern about these activities, or they would substantiate what harms were done. We’re now more than a year since my NSA revelations, and despite numerous hours of testimony before Congress, despite tons of off-the-record quotes from anonymous officials who have an ax to grind, not a single US official, not a single representative of the United States government, has ever pointed to a single case of individualized harm caused by these revelations. This, despite the fact that former NSA director Keith Alexander said this would cause grave and irrevocable harm to the nation. Some months after he made that statement, the new director of the NSA, Michael Rogers, said that, in fact, he doesn’t see the sky falling. It’s not so serious after all.

The Nation: You also remind us of [Manhattan Project physicist] Robert Oppenheimer—what he created and then worried about. Snowden: Someone recently talked about mass surveillance and the NSA revelations as being the atomic moment for computer scientists. The atomic bomb was the moral moment for physicists. Mass surveillance is the same moment for computer scientists, when they realize that the things they produce can be used to harm a tremendous number of people. It is interesting that so many people who become disenchanted, who protest against their own organizations, are people who contributed something to them and then saw how it was misused. When I was working in Japan, I created a system for ensuring that intelligence data was globally recoverable in the event of a disaster. I was not aware of the scope of mass surveillance. I came across some legal questions when I was creating it. My superiors pushed back and were like, “Well, how are we going to deal with this data?” And I was like, “I didn’t even know it existed.” Later, when I found out that we were collecting more information on American communications than we were on Russian communications, for example, I was like, “Holy shit.” Being confronted with the realization that work you intended to benefit people is being used against them has a radicalizing effect.

The Nation: We have a sense, or certainly the hope, we’ll be seeing you in America soon—perhaps sometime after this Ukrainian crisis ends. Snowden: I would love to think that, but we’ve gone all the way up the chain at all the levels, and things like that. A political decision has been made not to irritate the intelligence community. The spy agencies are really embarrassed, they’re really sore—the revelations really hurt their mystique. The last ten years, they were getting the Zero Dark Thirty treatment—they’re the heroes. The surveillance revelations bring them back to Big Brother kind of narratives, and they don’t like that at all. The Obama administration almost appears as though it is afraid of the intelligence community. They’re afraid of death by a thousand cuts—you know, leaks and things like that.

The Nation: You’ve given us a lot of time, and we are very grateful, as will be The Nation’s and other readers. But before we end, any more thoughts about your future? Snowden: If I had to guess what the future’s going to look like for me—assuming it’s not an orange jumpsuit in a hole—I think I’m going to alternate between tech and policy. I think we need that. I think that’s actually what’s missing from government, for the most part. We’ve got a lot of policy people, but we have no technologists, even though technology is such a big part of our lives. It’s just amazing, because even these big Silicon Valley companies, the masters of the universe or whatever, haven’t engaged with Washington until recently. They’re still playing catch-up. As for my personal politics, some people seem to think I’m some kind of archlibertarian, a hyper-conservative. But when it comes to social policies, I believe women have the right to make their own choices, and inequality is a really important issue. As a technologist, I see the trends, and I see that automation inevitably is going to mean fewer and fewer jobs. And if we do not find a way to provide a basic income for people who have no work, or no meaningful work, we’re going to have social unrest that could get people killed. When we have increasing production—year after year after year—some of that needs to be reinvested in society. It doesn’t need to be consistently concentrated in these venture-capital funds and things like that. I’m not a communist, a socialist or a radical. But these issues have to be 
addressed.