10/30/13 – Marcy Wheeler – The Scott Horton Show

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All right, y'all, welcome back to the show.
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And now on to our friend Marcy Wheeler, the great Empty Wheel on the net.
That's emptywheel.net.
And you can find her, of course, on Twitter as well at Empty Wheel.
I was going to say at at Empty Wheel, but I tried it with just one.
Did it work?
I'm not sure.
Hi, Marcy.
Welcome back.
Hey, how are you?
I'm doing good.
Great to have you back on the show.
How are you doing?
It's good to be back here.
Well, I guess I'm giving your fingertips a rest for a minute.
I know you're hard at work over there, parsing the nitty gritty.
And I want to get to all the hearings and all the obfuscation from yesterday and the past few weeks.
But we got breaking news today, of course.
The Washington Post has this brand new one about the NSA, Barton Gellman, recipient of the Snowden documents, a brand new one about the National Security Agency collecting the well, something or other, you tell me, from Google and Yahoo.
And then maybe this is the best place to do it, Marcy.
I don't know.
I guess you use your judgment.
It's certainly better than mine.
But maybe you could sort of start by telling us the difference between Patriot Act 215, FISA Amendments Act 702, and Executive Order 12333.
Maybe even correct my understanding, if necessary, that those are basically the three big supposed authorities that are used, at least to claim that all of these Snowden revelations are simply exposing legal operations by the National Security Agency.
Is that right?
Yeah.
It sort of stems first from Article 2 of the Constitution, which, depending on which branch of government you're in, either gives the executive branch full or limitable authority to conduct spying.
So the executive branch is going to say there are no limits.
They can do whatever they need to do, because that's what Article 2 gives them.
And Executive Order 12333 is the executive order that's been updated a bunch of times that lays out what the intelligence program is supposed to be.
So in other words, it tells you what the president thinks the outlines of the limits, the self-imposed limits on his spying are.
And so, for example, it has limits on whether or not you can wiretap Americans that have been repeatedly violated.
And in fact, it's sort of besides the point, but it's important for people to know that John, you sort of rewrote the executive order secretly without telling anybody, and the OLC decided that he didn't have to tell anybody.
So we can't really trust that the Executive Order 12333 says what it says, because it has repeatedly been kind of rewritten in secret.
But one of the things it says is that if you accidentally collect U.S. person data, you're supposed to minimize it.
You're supposed to protect it in certain ways.
But so just in the scheme of things, this executive order is implementing the spying program and incorporating in some ways, perhaps, the laws from the Patriot Act under 215 and the FISE Amendments Act under 702, but not entirely.
It has...
No, no.
Actually, sorry.
Section 702 especially limits executive authority under certain circumstances.
So it says you can spy all you want under Article 2, except in these circumstances we're going to put limits on you, and the circumstances are in the United States for U.S. persons.
So in other words, Section 702 especially, and to some degree Section 215, are both limitations.
They're laws that Congress have put in place to limit what otherwise the President has been able to kind of declare, this is me, I get to do whatever I want.
I see.
So those two laws do put limits on, or they're supposed to put limits on, whatever the agencies are carrying out as they're instructed to under this executive order.
Is that right?
Well, they are supposed to, but we know that the executive branch repeatedly has said, you can't impose limits, and therefore I'm going to bypass them.
You know, in other words, you can't trust presidents.
And so, in theory, I mean, there's an exclusivity provision in FISA that says this is the exclusive means to conduct electronic surveillance, and that's the law that the Bush administration broke when they set up an entire illegal wiretapping program.
And they came back and said, well, it doesn't really limit the President, it can't constitutional.
That's the issue.
Right.
So we're still arguing, basically, the radical Dick Cheney, David Addington, John Yoo point of view that, in essence, the way I understand it is, all of the Constitution simply is the commander-in-chief clause and nothing else matters.
And so, that's pretty broad, because it means, sort of, it's like saying he has unlimited war powers at all times, at any time.
Well, and that would normally only be true for things pertaining to foreign policy, right?
That's the one area where the executive branch arguably is cabined off and given unlimited authority.
I don't think that's actually true, and SCOTUS law would not say it's true, but that's what they argue.
But the thing is that they've now argued foreign intelligence to include things like hackers, because they say, well, they could be foreign, and they're trying to steal, oh my gosh, the F-35 plan, which is a dunderhead anyway, and therefore, to protect our foreign interests, we have to go in and spy on all hackers, whether or not they're in New Jersey or in Beijing.
Right.
Well, and it sounds like...
That's how it's evolved.
And the terror, the war on terror was really critical to that process, because they were able to say, it's kind of this enemies within, that, well, this nice Muslim guy who lives next door may be an American citizen, but if he talks to Osama bin Laden, then he becomes foreign intelligence and any rights that he has sort of fade away, because, you know, Article Two.
I mean, that's sort of the argument.
And then, so, it's loopholes like that is what we're looking at in the Washington Post this morning, this new Gelman piece, right, where they're saying, well, hey, if Google, the way I understand it, I guess maybe this is a good way to get the point across, the way I get it, they sync up all their computers all around the world in their giant warehouses full of computers, Google and Yahoo and all that, but, hey, so if they're Googling American information, if they're syncing their American information with a warehouse in Indonesia somewhere or something like that, then, oops, all your stuff is overseas now, so now it's all up for grabs, even though it's all American stuff.
And that's their big loophole where they don't have to abide by the limits anymore.
Right.
I mean, the whole point of the FISA Amendments Act passed in 2008 was that Congress said, the executive has a legitimate interest in wiretapping within the United States because Google and Yahoo, which is why this, I mean, one of the many, many reasons why this Washington Post scoop is so important, because terrorists were using Hotmail, Yahoo, and Gmail email accounts, and so they were effectively communicating from within the United States.
And it was that technicality that, you know, you could have a terrorist communication state entirely within Mountain View, California, within a Google server, and yet it would still be a terrorist communication.
And so they said, well, we need this exception to this no wiretapping in the United States so that we can get to these terrorists within the United States.
But at the same time, they also said we need to get telecommunications that happen to transit the United States.
Well, they did that on purpose, so it was easier to wiretap everybody.
But at the same time as that's been happening, the way the Internet works is if I send something to you, it could go through Kansas City, but it could also go through Singapore, just because that's the way the Internet works.
And so if it goes through Singapore, the government is now claiming by virtue of my communication to you having gone through Singapore, and, you know, maybe we're even talking just on Google servers, they can nab it over there.
And, oh, golly, we didn't mean to collect it, but we did.
Sorry.
That's what they've been saying.
And now they've gone further, and they've said, you know, in spite of the fact the Vice Amendments Act was largely passed so that the NSA didn't have to do what they had been doing, which is basically stealing Google and Yahoo content off the switches as it came through the United States.
So we're stealing it.
And they said, well, that's not legally kosher.
Let's write a law so that they don't have to do that anymore.
But now they're back to stealing.
What they're doing is they're going over to where the Google server connects into the public Internet.
And at that point where it becomes encrypted, they're getting it right before it becomes encrypted so that they can get to the email.
Yeah.
Well, you know, it's amazing to look at this Washington Post story.
If you haven't seen it, everybody, go and check it out at the Washington Post and check out the slides.
They have this document.
And I saw you were correcting someone on Twitter.
And so it's probably a pretty easy misimpression that someone might get Marcy on this, that they thought Edward Snowden had helpfully, you know, drawn a little cartoon on a notepad for Glenn Greenwald or something explaining what we're looking at.
But no, this is apparently the NSA documents, this little kind of cartoon drawing of here's the Internet and here's Google's private servers that they're trying to keep everyone in the world, including us, out of.
And here's us.
And here's where we grab it all and decrypt it.
And and ha ha.
And it has a little smiley face there.
And it's really something to to behold.
And then if you check out in the article, it says when they showed it to some Google engineers, they cursed out loud.
They didn't repeat the profanity in The Washington Post.
But this was something that apparently they had not anticipated, Marcy.
No, they've been worried about it.
And they've been working, you know, especially after the LavaBit thing.
Remember, LavaBit was Edward Snowden's email provider, and they had the same kind of encryption as it goes across the wires.
They just had more encryption as it fits in servers.
And Google has, you know, Google has like armed guards at their servers.
And I think even the government wouldn't sneak into their servers unless they had a FISA warrant normally.
But they found a space on the wires to get into it and steal the content overseas.
And they're just going to call it overseas buying.
And, you know, so be it.
But but it it is.
Google and Yahoo have been worried, I think, about this kind, you know, they're trying to not not Yahoo, Google for all the other parts of the company that are evil.
They have been trying to stay ahead of the federal government's prying.
And they realized a couple months ago, I think, as a result of the LavaBit thing, that they had to try harder.
And now they learned about this in this story.
And it's clear that, you know, we're back to where we were in 2007, that the government is just stealing content.
Well, you're pointing out on Twitter today and on your blog at EmptyWheel.net, Marcy, that Microsoft is the dog that didn't bark in this one with Bill Gates and company.
Well, that's a very good question.
And partly one of the one of the responses I got to that question is that Hotmail isn't Google is default encrypted.
Yahoo is moving in that direction.
Hotmail is nowhere close.
So they don't have the same problem with Hotmail emails going across across telecom wires.
But there's also there are hints that they're getting some of this content voluntarily.
It's not clear whether that's Microsoft.
You know, certainly that's what the telecoms are doing, but it's possible that's what Microsoft is doing.
And it's Microsoft has such a closer relationship with the NSA and the NSA has already, you know, the NSA has has corrupted so much of Microsoft's products in order to hack, say, Iran, that there's got to be an interesting relationship there.
We just don't know what it is, whereas Google and Yahoo have both made varying degrees, but clear degrees of effort to kind of keep the government out of their panties.
Well, you know, in Bamford's book, The Shadow Factory, which came out at what the end of 2007, I guess he talked about what was then in the process of being built was this massive data storage facility, NSA facility in San Antonio, which was, you know, more or less comparable to the thing they're building out in Utah.
I think he actually compared it to the size of the Alamo Dome, which if anybody's ever been to the Ozzfest, they rock down in San Antonio.
But that thing is huge, the Alamo Dome.
How much computer power they could store in that, I mean, is beyond my ability to imagine, really.
But I believe that the final kind of qualification before they went ahead and signed the deal was the Microsoft guys and the NSA guys both shook hands and agreed that if you build your facility here, we'll build our facility here.
And then they put a fiber optic cable probably as thick as an oil pipeline between the two of them.
And they're just a few miles away down there in San Antonio, last I heard.
So I don't know what they would need with any spying when apparently Microsoft is just a division of the military at this point.
Right.
And I mean, the other thing is that both Microsoft has fewer overseas cloud centers.
Google has the most, partly because Google carries so much more traffic.
But to some degree, that makes it less vulnerable overseas.
But to some degree, it makes it easier to cover all bases there.
But I don't know what the answer is on Microsoft.
Yeah, good question.
Well, I guess we'll see as more develops.
By the way, when Glenn Greenwald says, oh, yeah, the worst stuff, we haven't gotten to that yet.
What is he talking about?
I think I mean, I'm not entirely sure.
And I haven't asked him about it.
I don't know.
But but he did.
Somebody said today in response to this Washington Post thing that when Glenn said the worst is to come, this is the kind of thing he meant.
And I think that's true.
I think that that I think in many ways, this is as bad as anything that's been revealed so far.
I mean, the the Verizon order was shocking because we learned that every single American is collected.
But but this is in many ways more shocking because because I think it actually we don't know.
And we're going to have to learn over the next couple of weeks.
But I think there's a good chance this makes this practice parallel to what George Bush did, which we were so offended by.
In other words, this this may well be an effort to bypass existing laws, existing court rulings, existing judgments.
And if that's the case, I don't see much that separates it from what George Bush did, except that it came after George Bush.
It came after President Obama condemned what George Bush did.
You know, I don't it's it's hard to come up with a good good.
I mean, and the NSA, if you put this together with a lot of it, the NSA is really to a point where they're refusing to take no for an answer.
And so for whatever reason that they had that they felt like they had to go steal from from Yahoo and Google, it was either a legal or technical limitation, either in probably both.
Clearly both, because one of the things they're getting around is the encryption that Google uses.
So they you know, they had they couldn't just go to.
And that's what we're all asking.
I just did a post on this right before I got on the line with you that that the NSA has the legal authority to go to Google and demand stuff.
And so the big question is, why wasn't that enough?
They can demand stuff that comes to them unencrypted.
They get masses of stuff right there at their desk.
Why wasn't that enough?
And the answer has to be in some way that what they want doesn't fall within the guidelines, whether it's the minimization requirements that the government has to do or whether it's the kinds of targets they can search on.
It doesn't fall within the guidelines of the law that was written precisely to allow the NSA to go and get this legally.
And that's the most I mean, we don't know what it was that caused it, but that is the most likely answer.
Mm hmm.
Well, now, so Alexander denies already, I think I forgot who it was, Politico or somebody published.
You don't know what you're talking about.
So what's their slant and how sure are you that it isn't right?
You know, it's a it's a safe bet that anything that comes out of Alexander's mouth is a clever dodge.
And from what I've seen of his dodge so far, he he denied that we have compromised Google's servers.
But what really seems to be the issue is not the server itself, but the link between the server and the cloud.
And so that may be just a technicality.
I think that's part of it.
And we're not you know, no one saying they compromised it, meaning the server doesn't work anymore.
It's that they're just copying it.
They're making their own copy, just like they did in the Folsom Street room in San Francisco.
They're just doing it for Google stuff.
So it's that kind of I mean, that's that's all that Keith Alexander's been doing for months.
And it just, you know, unfortunately, every once in a while journalists.
Get snookered and they buy it, but but they're not denying that they have been taking stuff from Google overseas that, you know, they have the authority to get or they or they that there is a law that they should be working under here in the United States to get that stuff.
Yeah, all these guys have, I think, honorary PhDs from the Bill Clinton School of denying stuff.
You just work in so many qualifications that you don't know which part of it is the part that they're hanging it on.
And it's kind of silly, actually.
But as you say, sometimes it really works well.
And as you were writing on your blog yesterday, it worked really well yesterday.
There at EmptyWheel.net, people can read all about how they came out with this very carefully worded denial of the most recent revelations about cooperation between European and NSA spying.
Just in as best I can tell, a desperate attempt to try to say that Glenn Greenwald's wrong about something.
But I mean, I've been trying to do that for a while.
I also think this is an attempt, you know, Europeans, the French and the Germans, especially are kind of going, oh, my gosh, you spied on us.
Well, then you're going to have to start sharing all your intelligence.
They sort of they've been using the last two weeks of disclosures to demand that basically the U.S. and the U.K. expand the five eyes, the cooperation between the U.S., U.K., Canada, New Zealand and Australia, to include our European allies.
And that's what it is.
It's a bid for power.
It's a bid to use this awkward period for the United States to get more of what we have.
And so one of the things that the NSA was doing was, well, you know, actually that intelligence and I'm sure the original was very well parsed.
What people can read at EmptyWheel.net, what Alexander said yesterday that confused just about every single national security journalist in the country.
But, you know, he basically said, oh, we don't collect that.
We and our NATO allies collect that.
And he's got these otherwise very good journalists going off and hunting the SIGINT that France gives the United States for the operations in Mali, none of which addresses the fact that GCHQ is just sucking this, you know, sucking up what Europe produces and giving it over to the NSA.
And that's probably the overwhelming bulk of what this data collection is.
And then, you know, he basically admitted there in the hearing that the U.S. does collect in Europe, but nobody noticed that because they were so, you know, bedazzled by this work.
You know, the French are giving us data, but that also in return has kind of put the French in a bit of a tizzy because now the French are saying, oh, well, we don't collect it.
We don't know.
We it's turning it around.
It's turning the French presumption that they can use this opportunity to get stuff from us back around at the French.
I mean, that's one of the things that's going on.
Yeah, well, you know, all the powerful protesting too much about that this could happen to them.
None of that impresses me very much.
I'd rather look back toward the question of all us regular people, all the innocent people, all the business people, all anybody getting all their data all sucked up under the name of protecting us from, you know, bin Laden, who's already dead.
Well, I mean, they keep saying bin Laden, bin Laden, bin Laden, although in yesterday's hearing, Alexander also said it's also the Chinese and Russian that he's protecting us against, which, you know, at least he's branching out on his fear mongering a little.
But I think I mean, one of the things that I suggested in this post I just put up is that I think one of the reasons they had to go steal stuff from Yahoo and Google overseas is I think, although we don't know, but I think that the FISA court has actually imposed some limits on what it can collect from Google in the United States based on the kind of what's called special needs.
I mean, you can only search.
You should never be able to.
I think we agree on that.
But you can only search without a warrant in this country if you have a special need.
You know, it's the easy way for people to think about it is how this all arises out of drunk driving stops there.
You know, the cops are allowed to stop people without suspicion to see if you're drunk.
And the idea is it's going to keep us all safe.
All of this spying in the United States, to some degree, operates just like a just like a DUI checkpoint.
Right.
They're going to stop our communications to make sure that, you know, drunk terrorists aren't driving around and endangering the United States.
And I suspect and this is just a guess, but I suspect that the FISA court has said, you know, we agree that terrorism meets that special need, but we don't agree that finding out what Angela Merkel wants to do with the euro meets that special need.
And so you can't do that under this program.
And so I think it's something like that where the government has decided to go off and steal from Google and other countries to get the Angela Merkel answers.
Yeah, well, that's what's really amazing, right, is after the FISA Amendments Act that they would still need to break the law, they think, you know, and go beyond that when the FISA court has been so generous.
Right.
I mean, I mean, the FISA Amendments Act is so broad.
And then since it's been written, it's been broadened in secret for things like they're allowed to keep encrypted communications forever.
They're allowed to keep things that represent a threat to property, even though the law says they're only allowed to keep it if it represents a threat to bodily harm.
It's been expanded in secret over and over and over again.
They're allowed to search on incidentally collected information.
I mean, you know, it's just gotten blown out of proportion as it is.
And yet still, that law is not permissive enough to allow whatever it is that the NSA is trying to do.
And that's that that really ought to be shocking.
That'd be, you know, people ought to really start worrying what's going on.
All right.
And now, very quickly here, what do you make of Dianne Feinstein coming out and changing her position, just electoral politics or anything?
No, it's not.
No, it's not.
I mean, like, unfortunately, California is going to keep electing Dianne Feinstein until she chooses to step down.
I think it's partly prerogative.
I think that a big part of me thinks that she realizes some of the some of the world leaders who've been wiretapped are people she has conversations with.
I mean, not nobody noticed that.
But Bibi Netanyahu had a conversation with Obama yesterday, and he would be very close to the top of the list of people we would wiretap if we could.
Yeah, I saw you pointing out that John McCain was panicking there.
Yeah.
And and there are I mean, I would be shocked if John McCain didn't have regular conversations with Bibi Netanyahu.
And so if you think about it, you know, it's much more likely that Dianne Feinstein is going to be picked up on a call with Angela Merkel or or Bibi Netanyahu or even more so John McCain, because they've got to, you know, they've got to drive up war in the Middle East together than it is, you know, then they're ever going to be picked up in the United States.
So, you know, I think there are other reasons why.
But I think one of the reasons why is these are people in their circle and whether or not they think they could be wiretapped.
I do think they could be.
All right.
We got to go.
That's it.
Marcy Wheeler, everybody, the great Marcy Wheeler, EmptyWheel.net and follower on Twitter to Empty Wheel.
Thanks so much, Marcy.
Take care.
Hey, you own a business.
Maybe you should consider advertising on the show.
See if we can make a little bit of money.
My email address is Scott at Scott Horton dot org.
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