Much of the initial coverage of last week’s leaks about the National Security Agency (NSA) online snooping focused on a content gathering program called PRISM. But buried in the Washington Post’s original coverage were a few tantalizing details about another program code-named BLARNEY that bears a striking resemblance to the one alleged in a prominent court case over the existence of a dragnet online surveillance program.
The details of the BLARNEY program revealed so far appear to closely match the testimony and documents of former AT&T; employee and whistleblower Mark Klein. Klein worked at AT&T; for twenty-two years, retiring in 2004. During that time, he has testified he witnessed the installation of a fiber-optic splitting device in the San Francisco office where he worked, with a copy of all data being diverted to a room controlled by the NSA. In that room was “powerful computer equipment connecting to separate networks” and with the capability to “analyze communications at high speed.” As part of his testimony, he also provided AT&T; documents that included diagrams of the splitter technology used.
In a conversation with ThinkProgress, Cindy Cohn, Legal Director with the Electronic Frontier Foundation (EFF) which is litigating the Jewel v. NSA case, agreed BLARNEY “appears to be what we’ve been saying, and what Mark Klein’s evidence shows.”
According the Washington Post, BLARNEY gathers up metadata from choke points along the backbone of the Internet as part of “an ongoing collection program that leverages IC [intelligence community] and commercial partnerships to gain access and exploit foreign intelligence obtained from global networks.” A slide later revealed by The Guardian lists the program as an upstream option for data collection, which relies on sucking up information “on fiber cables and infrastructure as it flows past.” From those descriptions, it sounds somewhat analogous to an internet version of the broad telephone metadata collection authorized in the Verizon order revealed last week, which some electronic privacy advocates believes oversteps the authority of Foreign Intelligence Surveillance Act (FISA) courts.
Klein’s testimony and documents form the basis of the ongoing Jewel v. NSA court case originally filed in 2008, which alleges “an illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency (the ‘N.S.A.’) and other defendants in concert with major telecommunications companies.” A similar case against the telecommunications company, Hepting v. AT&T;, was dismissed following the passage of retroactive immunity for telecom companies in the 2008 renewal of the FISA.
Three former NSA intelligence analysts, William E. Binney, Thomas A. Drake and J. Kirk Wiebe have also backed the Jewel case, saying the NSA either has, or is in the process of obtaining, the ability to seize and store most electronic communications passing through its U.S. intercept centers like “secret room” described by Klein.
The Obama administration moved to dismiss the Jewel case in 2009, invoking the “state secrets” privilege and saying that it was immune from the suit. It was instead dismissed on standing grounds, but the 9th U.S. Circuit Court of Appeals ruled that it could proceed to district court in December 2011. In September 2012 the government again renewed it’s state secret argument. Last Friday the government responded to the NSA leaks by requesting delay on any decisions on pending motions until it can file a new status report taking newly public information into account.