Microsoft's Cooperation With NSA Either Voluntary, Or Reveals New Legal Tactic

holy_calamity writes "When Microsoft re-engineered its online services to assist NSA surveillance programs, the company was either acting voluntarily, or under a new kind of court order, reports MIT Technology Review. Existing laws were believed to shelter companies from being forced to modify their systems to aid surveillance, but experts say the Foreign Intelligence Surveillance Court may now have a new interpretation. Microsoft's statement about its cooperation with NSA surveillance doesn't make it clear whether it acted under legal duress, or simply decided that to helping out voluntarily was in its best interest."

Comments

US considered hostile

[Anonymous Coward]

Don't use US services.

Missed an option.

[SuricouRaven]

It could be 'voluntary' complience, with the quotemarks. The classic offer-you-can't-refuse approach. Perhaps a government representative just explained that one way or another the NSA was going to get total access, but if MS (or any other company) complied now they could at least deign the taps in a way suited to their infrastructure, whereas resisting the request would result - after a couple of sessions of congress - in a new law mandating an NSA-designed system be installed and probably break half their well-designed systems by forcing centralisation.

In the UK we used the same approach to compel ISPs to install anti-child-porn filters: The government never actually passed a law mandating ISPs install filtering, they just made it quite clear that they would pass a law if the industry didn't collectively do so 'voluntarily.' This suits the govermnent very well, because it means the filtering list can be maintained by the IWF, an ultra-secretive unaccoutable non-governmental organisation with all the procedural transparency of a lead brick. If they screw up and block wikipedia, no government department gets the blame and no embarassing enquery is launched.

I'm expecting exactly the same tactic will be used within a few years to pressure ISPs into blocking regular adult pornography too - there's already a major tabloid and a couple of MPs campaigning for it. To protect the children, of course.

Possible answer

[dkleinsc]

Remember "national security letters" that were created as part of the "USA Patriot Act"? These were the special kind of fake warrants that were never approved by any judge, but any person or organization who got one wasn't allowed to tell anyone about, including a court of law (preventing anyone from saying "Hey, Fourth Amendment anyone?"). That would explain everything: why FISA didn't stop it, why the companies are cooperating with the NSA, and why they aren't including references to such things in their privacy policies.

Bless you, former senator Russ Feingold, for having the guts to stand up for the Constitution when the entire rest of the Senate ignored it.

Are you all FUCKING INSANE?

[Anonymous Coward]

http://www.guardian.co.uk/world/2013/jul/11/microsoft-nsa-collaboration-user-data

"Microsoft has collaborated closely with US intelligence services to allow usersâ(TM) communications to be intercepted, including helping the National Security Agency to circumvent the companyâ(TM)s own encryption, according to top-secret documents obtained by the Guardian.

The files provided by Edward Snowden illustrate the scale of co-operation between Silicon Valley and the intelligence agencies over the last three years. They also shed new light on the workings of the top-secret Prism program, which was disclosed by the Guardian and the Washington Post last month.

The documents show that:

* Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;

* The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;

* The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;

* Microsoft also worked with the FBIâ(TM)s Data Intercept Unit to âoeunderstandâ potential issues with a feature in Outlook.com that allows users to create email aliases;

* In July last year, nine months after Microsoft bought Skype, the NSA boasted that a new capability had tripled the amount of Skype video calls being collected through Prism;

* Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a âoeteam sportâ."

And you STILL want to do business with them? You STILL want to trust their OS with your personal files and/or communications?

What more do you need?

The demise of an empire

[Taco Cowboy]

As an American, as an American who loves my country, I need to have the courage to face the reality --- that my country has ceased to be the land of the free, the home of the braves, but has turned into an empire which is moving towards oblivion

Re:The demise of an empire

[Anonymous Coward]

Actually, as a German who knows the USA well: No it hasn't.

A very small group of people are like that. Most Americans aren't. They have just become apathetic in the face of an imaginary "insurmountable reality".

That is the art of intelligence agencies and social engineering (and churches btw.). It's all in your head... but to *you* it's hard reality. And that's all that counts.

Our Nazis also were just a small group of very loud and very confident assholes, and a huge apathetic mass around them.

So the war is fought in your heads. Starting with your own and those of your friends. All it actually really takes to change everything and take everything evil down, is changing your beliefs (and making sure they're not delusional) and having enough public confidence to make others change theirs too.
The rest is a result of the self-fulfilling prophecy.

The evil ones got in power that way... and they get out of power that way.

I think you and most Americans still actually are "land of the free, home of the brave" Americans. And from now on, you will trust yourselves again.
Deal?

Re:The demise of an empire

[mr_shifty]

Thank you, for this.

Re:The demise of an empire

[MasterOfMagic]

As an American who loves my country, I need to have the courage to face the reality --- that my country has ceased to be the land of the free, the home of the braves, but has turned into an empire which is moving towards oblivion

Not to be too glib, but the braves died out long ago under the watch of Andrew Jackson.

I have a serious question for you: why do you love your country? I can understand why one could love the ideals that your country was founded upon as they are beautiful. I can understanding wanting to get involved in politics to try and steer the country in a direction that you think is better than where it is now. Why a love of country, especially a country that has been doing immoral things for quite some time?

The last moral war the US fought, in my estimation, was World War II. It was declared by Congress, and the entire nation sacrificed for it. There was a draft. People left their comfortable jobs and went off to defend the world against tyranny, oppression, and genocide. There was a defined end goal.

Korea certainly did not fit that bill. Our entrance into Vietnam was based on lies. Beruit was Reagan trying to take the focus off Iran-Contra. The First Iraq War was based on lies and oil. Afghanistan was perhaps justified (though by no means moral, in my estimation). The Second Iraq War was also based on lies and oil.

The CIA has a track record of overthrowing democratically elected leaders if they judge them not in the best interests of the US. Remember the Iraninan hostage crisis? That was a response to the CIA reinstalling the Shah. Remember Saddam Hussein? The US put him in power.

Ever since the creation of the NSA and Hoover's reign at the FBI there has been spying on American citizens. Do not think that PRISM is new. The intelligence agencies have been making incremental gains towards it since the Red Scare. The biggest gain of all was convincing the public that CALEA compliance was important (that is, remote, digitally tappable equipment providing both voice and data flowing over the lines).

So, given all of that, why do you love your country?

Re:The demise of an empire

[Common Joe]

Deal?

Counter deal from an American living in Germany:

We Americans will work on this with the rest of Europe. When the U.S. does something stupid... say like forcing presidential planes to be put in danger and then searched, you slap the living shit out of the people requesting it and hold them up high so we can make examples of them.

Re:The demise of an empire

[meta-monkey]

Well, there's that Constitution thing. The ideals in it are pretty darn good. The implementation leaves much to be desired.

In our defense: fuck the Boomers. We were lied to.

There was a long road getting from throwing out a king just to replace an aristocracy across an ocean with a local one to when our grandparents smashed totalitarianism, then came home and took to the streets to make real that "all men are created equal" line.

But the fact that we traveled that road, the fact that we thought it was worth traveling at all, was the proof of the nobility of the American spirit. We weren't good because we were always good: we were good because we were always getting better.

Our grandparents made some mighty big steps. But their kids. Our parents. Fuck. And by the time we were old enough to get out of their suburban lie factories and participate in the economy and the government...boom. Towers, war, economic collapse, surveillance state.

You want to know why I love my country? Because Thomas Jefferson, Mark Twain, Harriet Tubman, Teddy Roosevelt, Chuck Yeager, Martin Luther King, Elvis Presley and Neil Fucking Armstrong, that's why.

You know why I'm mad as hell about it right now? Because the entire generation born between 1946 and 1964.

Let's tally

[Taco Cowboy]

Nowadays anything and everything that are related to NSA has been condemned to death by a million cuts.

But we do need to tally up what has actually transpired to the American society BEFORE Mr. Edward Snowden decided to break his silence of the terrible truth ...

The American society before the Snowden era was already a very damaged and trouble society.

The United States of America, as a nation, has already become very heavily debt-ridden, and that the rights of the average Americans has already been greatly reduced by patent-trolls and the copyright-MAFIAA-trolls.

Taken as a whole, NSA is but one of the many players with the nefarous intentions to decimate the Rights of the average Americans as guaranteed by the Constitution of the United States of America.

I am not defending NSA, but I have to be fair.

It ***IS*** the system itself, which the government of the United States of America is but a part of it, that is behind the destruction of the Spirit of Americana.

They allowed, hmm... no, they ENCOURAGED the HUMONGOUS CORPORATIONS to encroach into our rights (via patents and copyrights), and they actively fanned phobia against "gun violence" / "terrorism" in order to expediting the destruction of the Bill of Rights.

But the most important aspect of all is this --- that the American people have failed to rise up against the system.

We have become a people who no longer care about our own Constitutions.

Instead of being proud Americans who will fight for liberty and justice for all, we have become the timid Americans who will sacrifice anyting in order to secure a place inside the "safety cocoon" prepared for us, by our Great Leader.

The true "1984" had arrived, and it had arrived 29 years later than as was promised.

Re:What choice do they have?

[Arker]

"If the courts uphold them, they aren't illegal"

This is unfortunately a common misunderstanding.

16 Am Jur 2d, Sec 177 late 2d, Sec 256:

The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.....

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

Skype!

[Tasha26]

The purchase of popular Skype and modification of supernode to ease snooping now makes perfect sense. MS is just a front for NSA spying!

Re:What choice do they have?

[Anonymous Coward]

It's worse than that. Joseph Nacchio at Qwest did resist and is now in prison. Given the secrecy and that Qwest is the only company to have publicly resisted, he certainly looks like a political prisoner, visibly targetted pour encourager les autres. Key evidence was suppressed on "national security" grounds. This was even before the "patriot" act. A couple of links:

• http://harpers.org/blog/2007/10/qwest-another-political-prosecution/
• https://mailman.stanford.edu/pipermail/liberationtech/2013-June/008815.html

Re:Microsoft is a business.

[Anonymous Coward]

Yeah, put Linux on it.
For your reading amusement during the installation:

http://www.redhat.com/workshop/defense/agenda/

Panelists:
Neil Ziring: Technical Director, NSA Information Assurance Directorate
Al Holt: Technical Director, NTOC, NSA
Terry Sherryl: DISA FSO
David A. Waltermire: Security Content Automation Protocol (SCAP) Architect, NIST

It's weird that no one on /. seems to be curious if a corporation that is a leading contributor of OSS sofware with over a billion in revenues each year and a cozy relationship to the US defense sector has been pressured, like Microsoft, to put in backdoors/exploitable vulnerabilites into the Linux kernel or any of their other products. Yes, it's open source, but who audits the code? Supposedly each commit is signed off by another kernel dev. However, in most cases you have one developer signing off on commits of another developer from the same organization. Most times its just rubber-stamp procedure. Given that Linux is used across the world, it seems highly unlikely that the US government would only put pressure on proprietary software and services companies to comply with its demands to make their products easier for them to bypass?

Are terrorists really that dumb???

[ulatekh]

I'm sorry, but I'm not buying the primary argument here — that this level of surveillance is necessary in order to catch terrorists. (Never mind that it took this scandal leaking for Obama to actually say "terrorists".)

Are terrorists actually stupid enough to communicate using public services like this? You'd think that, at the very least, they'd be using Tor, or their own private equivalents. More likely than not, they're not even communicating electronically; Bin Laden communicated with the outside world through a very non-electronic trusted courier.

It seems to me that their argument is a red herring — that their real purpose is surveilling us, for partisan/corrupt purposes. Witness the harassment of Tea Party groups by the IRS, journalists by the Attorney General, and the NYPD's abuse of that data.

No different...

[mha]

...from the US today, or actually WORSE in the US today: You can democratically elect one of two parties that both continue on the same path.

I know that's a cheap comment to make (and I too am from Germany lived and worked in the US for many years - and loved it), but wouldn't you say there's more than just a grain of truth? How I too celebrated when Obama was elected! How very stupid of me.