Google's Role in the Government Surveillance of Fox News Reporter James Rosen

In recent weeks, there have been a series of controversies in the United States over the Justice Department snooping on journalists as part of aggressive investigations into leaks of classified information.

The most egregious case involves Fox News reporter James Rosen, whose private emails were secretly obtained, his phone records grabbed, and his movements to and from a government building electronically tracked. Rosen sparked a leak investigation after he authored a story in 2009, based on US intelligence passed to him by an anonymous source, concerning possible nuclear tests in North Korea in response to United Nations sanctions.

The case has attracted widespread coverage, and the extent of the monitoring of Rosen — and the FBI's accusation that he was "an aider, abettor and/or co-conspirator” who committed a crime for merely reporting news — has outraged media organisations. Some high-profile figures, including the lawyer James Goodale, have called for attorney general Eric Holder to resign for authorizing the surveillance.

But one element of the Rosen case has been largely overlooked: that is, the role of Google in handing over Rosen's emails. That is a point made by WikiLeaks founder Julian Assange in an opinion piece for the New York Times published Sunday. "There has been little analysis of Google’s role in complying with the Rosen subpoena," Assange noted.

I have been looking into this very issue in the past week, and so it seems like a good time to lay out what I've learned.

In 2010, it emerged last month, Google was ordered to hand over Rosen's emails and other data as part of a search warrant signed off by magistrate judge Alan Kay. Here is a list of what Google was told to give the FBI from Rosen's Gmail account, according to court documents:

• An "exact duplicate" of all communications between Rosen's Gmail account and three named email accounts deemed of investigative interest, two of which were @yahoo.com and one @gmail.com. Specifically: all emails sent or received by Rosen to and from any of the three accounts, whether marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and copies of attachments sent between Rosen and the three named accounts including videos, documents, and photographs.


• ALL communications sent to and from Rosen's Gmail account on 10-11 June 2009, from or to ANY address (i.e. not just the three named accounts). Specifically, as above, the FBI sought: messages marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and attachments including videos, documents, and photographs.


• Screen names associated with Rosen's accounts, account numbers, status of accounts, dates of service, methods of any payment, telephone numbers, addresses, detailed billing records, histories and profiles.


• Log files from Rosen's account showing dates, times, methods of connecting, ports, dial-ups, IP addresses, and/or location from which he connected.

Google was told that it must keep the warrant secret and should not "notify any other person... of the existence of the warrant." The question is: could Google have challenged the lawfulness of this contentious warrant and fought in the courts in an attempt to notify the journalist?

I asked Google, but the company said its policy was not to comment on specific cases. What I was able to establish, however, is that when Google receives an order to turn over user data as part of a search warrant, in most cases it does not see the full affidavit from the FBI investigator that details the specifics of the case — and the FBI has no legal obligation to inform Google of the specifics because a judge has already reviewed and signed off on it.

But crucially, what Google does sometimes see, a well-placed source told me on condition of anonymity, is an "attachment" that occasionally accompanies a warrant ordering it to disclose certain information. The attachment is an important document because it details the specific types of data investigators expect Google (or any other given company) to turn over. It also sometimes contains a note for the authorities detailing what they should look for in the data once it is disclosed.

In the Rosen case, there was a six-page attachment that detailed all of this. You can read it here. It breaks down the data Google was ordered to turn over, and it also has instructions for the investigators. If Google received this document before turning over Rosen's emails, in my view the company could fairly easily have established that this was a warrant to obtain private data on a journalist and his source.

How? The Rosen attachment, though it does not explicitly name Rosen or Fox News, outlines that the FBI is looking to find evidence concerning violations of the Espionage Act (18 USC § 793), a law that has been used at least seven times by the Obama administration to prosecute people for disclosing classified information. The attachment explains that the FBI is seeking to obtain communications between a man named Stephen Kim (the alleged source of the Fox News story) and the "author of [an] article that is the subject matter of the FBI investigation that is the basis for this warrant." The attachment also refers to "classified and/or intelligence information" and mentions that the FBI is seeking to find evidence in the emails that Stephen Kim and/or "the author" had knowledge of government rules or procedures regarding communicating with "members of the media." It adds that it is seeking to find evidence of the "author's communication with any other source or potential source of the information disclosed in the article," making it clear that it is a journalist's email being targeted.

Google would not tell me whether or not it had seen this attachment, again saying that its policy is not to "discuss the specifics of any particular case." But if the company did see it and did not seek to level any legal challenge, there is a legitimate and serious question to be asked concerning the extent of its complicity in the government's surveillance of a journalist in order to expose a confidential source. Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told me that while it is unusual and difficult for a company to challenge a search warrant because a judge has already reviewed and signed off on it, it is still possible to challenge. "Theoretically a challenge to the search warrant would go back to the judge who signed it, who I imagine would be reluctant to change their mind (though you never know)," Fakhoury said in an email.

This also raises questions for me about how closely Google scrutinizes individual warrants and court orders before turning over users' private data. Google has a fairly solid track record of standing up to government snooping that it deems disproportionate, and it has commendably pioneered the publication of transparency reports showing government requests to censor Internet content and obtain users' data. But if it turns out Google's legal team were sent the attachment in the Rosen case and did not even attempt to challenge the lawfulness of the warrant, as seems possible, the company's reputation for standing up for users' rights will take a hit — and deservedly so — not least because the spying on Rosen stands out as such a flagrant example of government overreach and excessive surveillance.

State Secrets Culture and Warrantless Wiretapping

In the days following 11 September 2001, many things changed in the United States. The terrorist attacks that took place on that day quickly prompted tightened security and, crucially, heightened use of surveillance tactics.

It is now well documented how eavesdropping agency the National Security Agency (NSA) was given unprecedented authority to intercept communications flowing to and from the country after 9/11. As the New York Times reported in its 2005 exposé: "The international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to al Qaeda."

This revelation led to a lawsuit (Jewel v. National Security Agency) which alleged the US government was engaged in "the biggest fishing expedition ever devised, scanning millions of ordinary Americans' phone calls and emails for 'suspicious' patterns." The lawsuit was originally dismissed back in 2010 on the grounds that it didn't sufficiently allege "personal injury" was caused by the warrantless snooping. However, this decision was later reversed and now an appeals court is taking another look at the case.

As it has done previously, the US government is asserting its state secrets privilege as part of an attempt to stop the case moving forward. In a motion to dismiss submitted to the appeals court earlier this month, the government said that invoking the privilege was necessary "in order to prevent exceptionally grave damage to national security." It denied the allegation that it had "indiscriminately collected the content of millions of communications sent or received by people inside the United States." But added that it could not prove this before a court because doing so would "risk or require the disclosure of highly classified NSA intelligence sources and methods."

Such claims from the NSA are not new. The agency has a track record of arguing it is entitled to avoid public scrutiny because doing so would pose some sort of grand danger. Back in 1998, for instance, the agency admitted it had spied on Princess Diana and was holding more than a thousand pages of documents in a "Diana file." But the NSA declined to disclose the information held about the Princess because it would reveal — you guessed it — "sources and methods."

The problem with the NSA's position is that it is questionable. The NSA seems to think that disclosing even the slightest detail about what it is doing would aid people who are engaged in plotting against the US. But organised terror groups or oppositional foreign government agents will already presume that every phone call they make and email they send can be intercepted by agencies like the NSA. And besides this, many of the NSA's clandestine methods can be learned by anyone with access to Google because of details made public by whistleblowers. A sworn 2006 declaration by a former engineer for the AT&T telecom firm, for example, stated the NSA was routing AT&T communications through a secret "secure room" where they could be intercepted. This, a former NSA employee said earlier this year in his own sworn declaration, involved the use of a "Semantic Traffic Analyser," which would allow the NSA to mine "addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and phrases" from within the data flowing through communication networks.

So given that such detailed information is already in the public domain about the NSA's snooping activities, the "sources and methods" justification for secrecy seems at best naive, at worst disingenuous.

The knee-jerk reaction of governments and groups with power is often to resort to secrecy in order to avoid controversy, to protect reputations, and to ultimately avoid accountability. That's why the use of state secrets to protect the NSA's wiretapping program from public scrutiny in a court looks suspect — particularly as the US government has form abusing official secrecy to conceal scandals.

As was revealed by the British politician David Davis during an astonishing speech in the UK parliament in March this year, the very same state secrets privilege currently being put forward to protect the NSA from court was previously used as part of an extraordinary cover-up involving US intelligence agencies (including the NSA).

In the late 1990s, as part of a covert effort called Operation Foxden, the FBI, the NSA and the US Central Intelligence Agency (CIA) were working with three businessmen — one Afghan-American citizen, two British — to introduce telecommunications infrastructure into Afghanistan. They planned to rig it with extra circuits in order to listen live to every landline and mobile phone call across the whole of the country. But there was a turf war between the three US agencies, which led to Operation Foxden being delayed some 20 months. It is believed, had it been introduced earlier, it may have helped gather intelligence about the 9/11 terror plot — possibly preventing it from ever happening.

The businessmen involved in helping set up the Afghan network later had a dispute over money, which in 2002 ended up being taken to a court in New York. A year later, the case was suddenly shut down by a judge who cited the state secrets privilege. It turned out that the two British men involved in the deal — Stuart Bentham and Michael Cecil — were being defrauded by the Afghan-American, Ehsanollah Bayat. But they were not allowed to have their case heard in court because the US government did not want its secrets laid bare — in this case showing that a dispute between the intelligence agencies had delayed a massive spy project that might have helped prevent a catastrophic terrorist attack.

Last year, a Vanity Fair writer found out some details about Operation Foxden and approached the CIA for comment about it. Surprisingly, given the previous iron-fisted attempt to keep the story secret and out of courts, the CIA made no attempt to suppress Vanity Fair's report. Why? According to a US source quoted by David Davis in his speech to the British parliament on the subject: "Ten years have passed since 9/11, and the culpable people have moved on, so it’s no longer embarrassing."

The short remark was as shocking as it was revealing. As Davis noted:

This demonstrates only too clearly that although the aim of the American state secrets privilege is to protect national security, in practice it is often used to eliminate embarrassment — political, bureaucratic, organisational or individual embarrassment at past failures ... It also shows how giving a government agency an absolute right to secrecy encourages bad behaviour. The American agencies could easily have stopped the defrauding of British citizens without the matter going to court, given their enormous leverage in the matter. Instead, they chose to suppress justice.

Could the current attempt to stop the case against the NSA over the domestic surveillance programme be a similar bid to "suppress justice" and protect reputations? It is not a far-fetched possibility. One key figure in the warrantless wiretapping saga has even openly gloated about how he is pleased state secrets privilege is being used to shield him. General Michael Hayden, who was the director of the NSA between 1999 and 2005, said with a smirk a few weeks ago that he was "personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts."

Perhaps most alarming, though, is the bigger picture at play here. When any democratic government repeatedly resorts to secrecy to protect the disclosure of information the public has a right to know, it has lost its way. It is broken, existentially fractured. In my own experience as a journalist, the US has a stronger culture of freedom of information than the UK does, but at the highest echelons of power there remains a definite absence of transparency and accountability. The ongoing surveillance case, and the aggressive bid to suppress it, is only the latest example.