How the NSA Might Catch Glenn Greenwald's Source

The USG Director of National Intelligence has released a fact sheet explaining PRISM and the ground rules at to when they can sift through communications megadata they have obtained. The NSA is also requesting from the DOJ that a criminal probe of surveillance leaks about its data collection and its methods.

Glenn Greenwald opened the floodgates of the leaks, when he disclosed that Verizon was providing massive amounts of phone data on its customers to the NSA.

If a criminal probe is started, will the NSA via PRISM, and other tools, have the legal support to track Greenwald's source? It appears likely. According to the fact sheet put out by the Director of National Intelligence, James Clapper,

The Government cannot target anyone under the court-approved procedures for Section 702 collection unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States. We cannot target even foreign persons overseas without a valid foreign intelligence purpose.

Clapper has released a statement which in part says with regard to the information leaked:

 Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. 

The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.

So Clapper does see a  security threat to Americans, from the leaks. Greenwald lives outside the United States in Rio De Janireo, Brazil with his lover, David Michael Miranda. The fact sheet is hazy as to what a "foreign target" is and whether an American living outside the US is a "foreign target." But Greenwald's lover is not American.

In a profile in Out magazine, Greenwald explained that his residence in Brazil is due to the fact that American law, specifically the Defense of Marriage Act, bars the federal recognition of same-sex marriages and thus prevents his partner from obtaining immigration rights in the US.

Thus, there are two ways the NSA may be able to use PRISM and other technologies  to sift through its data to see who Greenwald has been talking to and emailing.

And remember, it appears that no specific court order is required to sift through the megadata once the court order is granted for the NSA to collect the megadata. It is, in other words, the NSA itself which must determine whether a national security threat exists, which can then justify the NSA sifting through the data. Clapper, in the statement I have already quoted, seems to have already indicated he believes a breach of national security has occurred.

Thus, we must move on and determine whether Greenwald can be a direct target of the NSA. The language, at least according to the National Intelligence fact sheet, is not clear on this point. It refers to foreign targets, does "foreign target"  mean only non-US citizens or anyone who is in a foreign land? If we want to take the broad interpretation (and  remember, Obama has already ordered the killing of US citizens on foreign lands), then Greenwald is a foreign target.

On the other hand, the NSA may try to get to Greenwald via his lover, who is a non-US citizen. Is it a stretch for the NSA to argue that Greenwald is a security threat and that this means his lover is a legitimate target of PRISM?  If they make that jump, they can then run PRISM, or other programs, on Miranda, which is extremely likely to result in the detection of calls between Miranda and Greenwald, which would then give the NSA justification to run programs on Greenwald and see who he has been in contact with in the US, as it seems once the NSA gets that initial connection it can follow it through as many further links as it wants to.

With Greenwald in Brazil, it is unlikely he was meeting his source on a park bench in the US. His contact with his source was most likely by digital communication, the type of digital communication that the NSA has likely stacked in its storage facility. Thus, unless Greenwald's source was very careful and used throwaway cell phones, he is likely very easy to catch by using NSA technology---and even if he used throwaway cellphones and internet cafes, he is probably just a little more difficult to catch.

Admittedly, the NSA would have to stretch a bit to argue that Greenwald is a "foreign target" or that Miranda is a legitimate target, but keep in mind, it does not appear that the NSA has to even go to a judge to  make this call. It's all up to the NSA internally. How do you think they are going to make the call on a guy they want to bust really bad?