Another Worry In An Already Bad Summer For The NSA

Ross Slutsky | Philadelphia

VOA intern Ross Slutsky occasionally writes about emerging digital technology issues for “Digital Frontiers” from Philadelphia

In recent weeks, much attention has been paid to the privacy implications of the NSA’s surveillance programs, and rightly so. Now comes a new issue.

Edward Snowden, the man behind this summer’s leaks about secret U.S.  programs to monitor wide swaths of electronic communications, isn’t just a big headache for the NSA. He was also a contractor for the agency, working through the private firm Booz Allen Hamilton. His revelations about programs such as PRISM have not only raised concerns about the extent of U.S. surveillance, but the out-sized and pervasive role of outside private contractors play in the NSA’s operations.

The NSA’s contemporary growth

The terror attacks of September 11, 2001, transformed the NSA from a Cold War relic into one of the fastest growing intelligence agencies on Earth.  In the wake of the 9/11 attacks, the NSA pulled in billions of dollars in new government contracts. As part of a larger effort to modernize the agency, former NSA director Michael Hayden increased the percentage of agency workflow outsourced to outside contractors.

In his book on the NSA The Shadow Factory, intelligence journalist James Bamford claims that the size and scale of the NSA workforce exploded after 9/11.  “With the billions pouring in, Hayden launched the largest recruiting drive in the agency’s history,” writes Bamford. “By 2008, 40 percent of the NSA’s workforce had been hired since 2001.”  However, Bamford’s most disturbing claim is that, largely hidden from the public, the role of contractors in NSA operations has increased dramatically.

“At the same time Hayden was building his empire within Fort Meade, he was also creating a shadow NSA: of the $60 billion going to the intelligence community, most of it– about $42 billion, an enormous 70 percent– was going to outside contractors,” says Bamford.

Though Booz Allen Hamilton is a frequent recipient of NSA contracts, the issue of contractors extends well beyond one firm.  SAIC, L-3 Communications, Northrop Grumann, Lockheed Martin, Verint, Narus, and many other defense and intelligence enterprises play a pervasive role in the shadow NSA.

Why does this matter?

While private enterprises and contractors play a valuable role in various work settings, the de facto privatization of the state surveillance apparatus raises serious questions.

In recent weeks, continual revelations about the NSA surveillance programs have led many to conclude that the NSA has gone too far by spying on Americans.  However, even if one believes that the NSA is not violating the Fourth Amendment, the problems posed by the NSA’s growing reliance on contractors remain.

In the words of a document that the NSA recently released in order to clarify the legal authorities it operates under, Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the agency “to target non-U.S. persons who are reasonably believed to be located outside the United States.”

In non-legal jargon, this makes Section 702 extremely broad.  As Mark Rumold of the Electronic Frontier Foundation observes, “A “person,” for purposes of… [FISA], includes individuals as well as “any group, entity, association, corporation, or foreign power.”

It’s also important to consider the incentives outside contractors may have in the face of such broad legal authorization.

Booz Allen Hamilton is a corporation, and as ruled by the U.S. Supreme Court, a corporation is a person in the eyes of the law. What might this mean?

Booz Allen is a major technology consulting firm which claims that its major clients “include global corporations in the health, energy, and financial services sectors.”  If you are Booz Allen, and have legal authorization for a wide range of foreign intelligence activities, you may have an incentive to partake in corporate espionage.  If you are able to spy on corporations that compete against your corporate clients and funnel surveillance knowledge to the consultancy division of the firm, your consultants may be able to provide clients with better strategic advice.

The NSA’s prior history concerning collection of financial information may only exacerbate the public’s concerns.  As renowned investigative journalist Michael Isikoff reported in 2008, during the Bush administration, the NSA was able to access “massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals.”

The time for transparency

In light of the ongoing surveillance debates, the NSA may also come under increasing pressure to clarify the role that outside contractors play in the agency’s operations, and the oversight provisions it uses to make sure that the contractors do not fall prey to profit incentives.

While there is no shortage of reasons to be skeptical of the efficacy and rigor of the NSA’s oversight provisions, the most obvious reason is that this summer’s NSA surveillance debate only happened after a Booze Allen contractor managed to turn over thousands of documents to the press.  If Snowden alone was able to commandeer a vast body of information that the NSA never intended to make public, concerns about the broader principal-agent problems posed by private contractors in surveillance certainly seems reasonable.