An excellent piece from Joshua Foust on Glenn Greenwald’s numerous misrepresentations of the NSA’s XKeyscore tools: Getting XKeyscore Right.

Foust zeroes in on a Greenwald rhetorical trick I’ve also pointed out several times: he conflates the ability to do something with actually doing it. This is such a common theme in Greenwald’s pieces that there can be no doubt it’s a deliberate tactic to obfuscate the truth.

Greenwald does not substantiate any claim to systemic abuse of XKeyscore. He does not provide a single instance where it was used — illegally — to collect information on a U.S. citizen. In fact, the discussion about potential abuse of NSA programs remains theoretical. There are no credible allegations of widespread, illegal abuse of the programs in place to identify and track suspected terrorists. (Even Senator Ron Wyden, in noting that the intelligence community “misled Congress about the usefulness” of mass collection programs, is not identifying systemic abuses or failure of oversight audits within the system.) The potential for abuse is real and not to be discounted, but it is misleading to present it as actual abuse.

But more importantly, the documents posted by the Guardian to back up Greenwald’s latest overheated claims are more than 6 years old.

The Guardian also posted an entire deck of slides (warning to government-employed readers: the slides are highly classified) on its website, which purport to describe the XKeyscore system. This is where the question of journalistic overreach advances from quibbling about presentation and tabloid-style hype to outright misrepresentation.

Greenwald claims in his piece that Xkeyscore allows analysts to indiscriminately read emails, including those of American citizens. Yet the slides themselves only mention indexing and metadata. Nowhere do they mention reading the content of emails, either because it is illegal without a warrant (in the case of U.S. citizens) or XKeyscore is not the correct system to do so.

The date that these slides were created is critical. Greenwald and the Guardian posted them as relevant sourcing material for the XKeyscore program. Yet they are not current — in fact, the slides refer to a program that was almost certainly changed significantly due to updates in U.S. law. In the lower right-hand corner of the first slide is an important set of numbers.

They show that the Powerpoint was first created on January 8, 2007 and should be declassified on January 8, 2032 under the standard guidelines of Executive Order 13526. But if the slides were drafted in January of 2007, then they pre-date both the Protect America Act (passed in August of 2007), which modified large swaths of the NSA’s warrantless surveillance programs first started under President Bush, and the FISA Amendments Act (passed in July of 2008), which instituted strict limits on how the NSA can collect, and required a specific warrant to intentionally collect, any data on a U.S. citizen. The title slide is marked 2008, but it’s unclear how it was modified, since the classification date would have to be updated if it included new classified data. It is also unclear if the slides were published in the months before or after the passage of the FISA Amendments Act.

The Guardian appears to be using obsolete slides created for a program that was later modified significantly through changes to U.S. law.