The NSA slide that tech experts say Glenn Greenwald misinterpreted. (The Guardian/NSA, US Federal Government.)

Bloggers and experts in the tech world have been raising an important caveat to a key aspect of Glenn Greenwald’s world-shaking scoop about the NSA’s PRISM story—an aspect my friend Karl Fogel, an open-source software guru, blogger and the proprietor of QuestionCopyright.org, calls an “epic botch” by Greenwald. People outside of the tech world absolutely need to know about this debate too, which is why, though I’m no expert, I’m sharing it with this wider audience. I deeply admire what Greenwald and his team at The Guardian are doing. I write in the interest of helping them do it better.

The “crucial question,” as Fogel frames it in a blog post, is this: “Are online service companies giving the government fully automated access to their data,” as Greenwald says they are, “without any opportunity for review or intervention by company lawyers?” This is what the companies have been denying—in statements that critics have been interpreting as non-denial denials. (Apple: “We have never heard of PRISM. We do not provide any government agency with direct access to our servers, and any government agency requesting customer data must get a court order.” So what if Apple et al. knew the formal name of the program? And what about indirect access? Or government contractors? And how are they defining “customer data”? Etc.)

Fogel points out that a widely read post to this effect called “Cowards” from the blog Uncrunched—“What has these people, among the wealthiest on the planet, so scared that they find themselves engaging in these verbal gymnastics to avoid telling a simple truth?”—is “mostly wrong.” He says, “It looks like Greenwald and company simply misunderstood an NSA slide [see image at the top of this post for the slide] because they don’t have the technical background to know that ‘servers’ is a generic word and doesn’t necessarily mean the same thing as ‘the main servers on which a company’s customer-facing services run.’ The ‘servers’ mentioned in the slide are just lockboxes used for secure data transfer. They have nothing to do with the process of deciding which requests to comply with—they’re just means of securely and efficiently delivering information once a company has decided to do so.”

In other words, this slide describes how to move data from once place to another without it getting intercepted in transit: “What the hell are the companies supposed to do?” Fogel jokes. “Put the data on a CD-ROM and mail it to Fort Meade?”

The implications of this interpretation, if correct, completely shift the grounds for the discussion of how the NSA’s PRISM program works—“the difference,” as Mark Jaquith of WordPress writes, “between a bombshell and a yawn of a story.”

(I contacted Google to ask about the issue, and a spokesman pointed me to their open letter to Attorney Holder and FBI Director Mueller and another to users, and reiterated, “We refuse to participate in any program—for national security or other reasons—that requires us to provide governments with access to our systems or to install their equipment on our networks. When required to comply with these requests, we deliver that information to the US government—generally through secure FTP transfers and in person. The US government does not have the ability to pull that data directly from our servers or network.” I followed up by asking whether “refusing to participate in any program…that requires us to provide governments with access to our systems or to install their equipment on our networks” includes refusing to provide government contractors with access to our systems or to install their equipment on our networks,” and the spokesman replied, “Yes.”)

Greenwald has not yet made a public evaluation of whether or not he agrees that he made that mistake. [Update: on Twitter, Greenwald linked to this interview with Chris Hayes as evidence that he has; I'll leave it to readers to judge whether they agree that he's answered the criticism.] He owes it to us to do so, with as much speed as practicably possible. It’s not too much to say that the fate of his broader NSA project might hinge on doing so effectively—because the powers that be will find it very easy to seize on this one error to discredit his every NSA revelation, even the ones he nailed dead to rights. (“It’s not like there aren’t legitimate things to complain about here,” as Fogel notes.) Such distraction campaigns are how power does its dirtiest work. Think of the way the questions about the authenticity of the “Killian documents” were able to obscure the fact that George W. Bush actually did go AWOL from the Texas Air National Guard or how the unrelated or how the unrelated killing of a CIA station chief in Greece was used to discredit the congressional investigations of CIA wrongdoing in 1975—cases with which Greenwald should be well-familiar. So, Glenn Greenwald, what’s the word? The fate of our civil liberties may depend on it.

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