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NSA Wiretapping focus shifts to email

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Wiretapping focus shifts to email, as firms move data overseas

Microsoft, Google don't deny participation in NSA program


March 7, 2008


Little-noticed comments by a senior Justice Department official suggest Congress' fight over renewal of the Foreign Intelligence Surveillance Act surround interception of email and Internet data.

At a Monday breakfast sponsored by the American Bar Association, Assistant Attorney General for National Security Kenneth Wainstein remarked that the fight over the eavesdropping bill actually centers on US interception of email.

"In response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States," the Washington Post reported Tuesday. "The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States."

Unlike phone calls, email messages are generally stored before being transmitted to the sender. Most messages are stored on an email provider's servers before they are accessed by the recipient.

Because they can be located anywhere, this means any portion of the law related to the Web could snare Americans' data overseas.

Microsoft declined to comment when asked about their participation in any NSA program, saying only that they have 300 million active email accounts.

Google told CNET: "As our privacy policy states, we comply with law enforcement requests made with proper service. We do not discuss specific law enforcement requests and generally do not share aggregate information about them. There are also some legal restrictions on what information we can share about law enforcement requests."

US companies moving data centers overseas

The admission comes amidst US email and Internet companies moving some of their servers overseas. According to a piece in March's edition of Harper's Magazine, AT&T, Microsoft and Google all have or plan overseas data centers in an effort by the companies to cut costs.

"Microsoft has announced plans for a data center in Siberia, AT&T has built two in Shanghai, and Dublin has attracted Google and Microsoft," Harper's notes.

Americans' personal data isn't just email. More and more computer users are storing personal word processing, photographs and other files online through document sharing programs like Google Documents.

"As the functions long performed by personal computers come to be executed by these far-flung data centers," the magazine writes, "the technology industry has rapturously rebranded the Internet as 'the cloud.'"

Some say Wainstein's admission that the debate over the eavesdropping act is centered not on "wire and radio" transmissions -- eg, phone calls -- suggests that most of the National Security Agency's concern is about their ability to spy on Internet data.

Director of National Intelligence "Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling," Wired blogger Ryan Singer writes. "If that's the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers."

If Congress approves immunity for companies that participated in President Bush's warrantless wiretapping program, these email carriers will get a pass. Though most debate centers around those companies already identified as participants -- Verizon, AT&T and Sprint -- the Act provides immunity for all companies that complied with federal orders, provided they had a solid legal foundation.

CNET's Chris Soghoian offers more. He writes that yet more companies could have been involved, noting that there are numerous firms that make up the Internet backbone -- Tier 1 Internet service providers.

According to Wikipedia, Soghoian continues, these providers are: AOL Transit Data Network, AT&T, Global Crossing, Verizon Business, NTT Communications, Qwest, SAVVIS, and Sprint.

"That leaves AOL, Global Crossing, NTT Communications, and SAVVIS as other potential participants in any NSA effort to sniff email communications," he adds.

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