01/17/14 – Marcy Wheeler – The Scott Horton Show

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All right, so now we go to our friend Marcy Wheeler, Empty Wheel, she's called on the blogosphere and on Twitter.
That's EmptyWheel.net.
Welcome back to the show.
Marcy, how are you doing?
I'm doing all right.
How are you?
I'm doing great.
Appreciate you joining us today.
Glad to be here.
So today was the big day of Obama's big speech on Fox News, which is the channel I happened to watch the speech on.
At the end, all the experts said, well, this won't please anybody.
All the critics are going to be mad as hell.
And all the people who are sticking up for the NSA are going to be mad, too, that its powers are going to be pushed back this much, something like that.
Is that about your estimation of this or no?
No.
Both James Clapper and Dianne Feinstein and my graduates have issued statements which are basically giant victory leaps, victory laps, also, you know, sort of saying, oh, he chose moderation, but they're so happy.
It's pretty clear they didn't choose moderation.
He basically just did nothing, did almost nothing to change what is in place right now.
Wow.
OK, so now I saw you wrote on Twitter that, you know, at the very least here, he hasn't proposed any legislative changes at all.
There's no real concession.
If anything, he wants to tweak some rules.
Well, he wants to tweak some rules or he doesn't even really want to tweak some rules.
What's the deal?
He said that Congress should figure out how Congress should figure out what to do with the dragnet.
So the phone records of somewhere between all or a substantial number of Americans.
That was going to happen anyway, because the Patriot Act expires in June of 2015.
In advance of that, Congress was going to have a debate about what to do with the dragnet.
So that's going to happen in any case.
So that's that's not a change.
It's just PR.
The other thing he said Congress should figure out how to do is be the advocate in the FISA court.
And so, you know, we'll see whether anything happens there.
I think everyone at least gives lip service to proving that, except for the FISA court has now weighed in and they can't have any oversight, because if they do, then the White House will start writing, have to start writing down all the requests.
And that might lead them to be less forthcoming.
It's just crazy.
It might lead them to be less forthcoming.
So, you know, that's the only other thing that Obama asked to have Congress do.
And on a couple of key purported changes, just as an example, he said, we won't let anybody do backdoor searches.
This is remember that the government gets huge chunks of data from Section 702 collection, meaning legal collection from Google and other Internet companies.
And right now the government says we can go into that collected information and search for Americans without even having a reasonable articulable suspicion.
We don't need any suspicion to go see what Americans show up in that database.
And Obama's proposal is, well, I'm not going to let, I'm going to have the Director of National Intelligence and the Attorney General make it so that we no longer do that for criminal cases.
He didn't even say criminal investigation, which means they can still use it to recruit informants and what have you.
But that's not enforceable.
I mean, it's going to be secret.
It's going to be more minimization, minimization procedures that won't get shared with the public.
And so, and moreover, his Solicitor General had already said, you need to start announcing this stuff in court and DOJ is already panicking about that.
So they were already going to stop doing that because they were having to do this, you know, they were going to have to start announcing it.
And as soon as it becomes clear to Americans how much of this backdoor searching is going to go on, we're all going to flip out.
So he didn't really change it.
He just, you know, he just gave an excuse so that we all go, Oh, good, great.
And change when it's not really a change, it's not enforceable.
We can't see it.
And so, and it's not going to be a legal change.
You know, this is one of the most, I'm sorry, I'm so excited about this.
I mean, so up in arms about this, but this is one of the most egregious problems from a Fourth Amendment perspective of all of this dragnet.
And because they're getting content, you know, they keep saying, we're not getting content.
We're not getting content.
Yeah, they are.
They say they don't even need suspicion to go in and get this content and, um, and they're not really changing it.
Hmm.
Well, and now, so this to me is, I guess it sticks out to me as the most important part of this NSA thing, because even if they are spying on us all day and they're the military and they claim it's incidental to their counterterrorism mission, blah, blah, whatever, as horrible as that is, and it's absolutely as horrible as horrible can be.
But if they're just turning over all of their haul to whatever state and local and federal civilian law enforcement and regulatory agencies for them to sift through on fishing expeditions, looking for anyone to be regulated on anything or anyone who's behind on any tax or whatever it is, that is the essence of the possible totalitarian nightmare contained in all this far beyond the metadata from our telephones and that kind of thing, if you ask me.
And so it sounds like what you're saying Obama said today is, yeah, you're right.
That's a problem.
That's why we're going to codify it into the procedures even more than it already is and do it some more because that's what we're about.
Is that pretty much what happened today?
I don't think they're going to do it anymore, but they're going to continue doing most of what they're doing anyway.
And there are four other reasons that they go in and do backdoor searches on this stuff.
One of them probably is when they identify a call from the contact chaining, they go in and check the actual conversations, because they have them, and find out whether they're interesting.
And if they're interesting, then they use that to go ahead and get a FISA warrant against the Americans.
So all of those uses, Obama is not swearing off.
They're still in place.
You're saying they do have the audio content to go back and check anything that they find interesting in the 702 data?
Is that it?
Yeah.
Or internet content.
So, you know, that's what they'll go get from Google, for example.
Well, this is the part that I've been, I guess, most confused about this whole time was whether or not, because it seems like I thought Glenn Greenwald had said as much that they don't have the audio.
But they do have everything but the audio.
But you're telling me they do, they're collecting the audio of all the phone calls to go back and check?
They're going to have a lot of the audio, because a lot of the audio they're collecting in bulk, they're collecting, they're collecting at the at the at the switches.
And so, you know, for a place with a lot of terrorism, say Somalia, where we don't speak the language, we have five translators, they're going to collect a ton of the content for a bit of time, and then use the metadata that they're also collecting and to find out whether any of that content is interesting.
And if none of it's interesting, they probably get rid of it and free up that storage space.
But yeah, and remember, most internet content doesn't disappear right away.
I mean, most internet content that Google's in the world can get to.
And so that doesn't disappear.
So yeah, they have ways of either and frankly, you know, James clapper pretty much said this within the first two weeks of the Snowden leaks, he said, we use metadata is as a Dewey decimal system to go in and figure out what to pull off the shelf.
Well, that assumes they've got the content on the shelves somewhere.
Right?
Yeah, it sounds like after all this telephone conversation over plain old telephone technology will just be an mp3 file for history's sake at scott wharton.org slash interviews, you know, and I'm sure they've got, you know, the right codec where they can shrink down a conversation like this to a pinprick on the database, right?
Yeah, that's nothing even a half hour conversation.
Yep.
So there you go.
I mean, the quality of the human voice, they could reduce the quality way down and still be able to tell everything that you say, and then zip that down by whatever equation and make it a much smaller file.
I mean, mp3 came out in 1993 or something, right?
So I'm sure they got a lot better ways to save space on saving those files now.
All right.
And now, so how much of the how much of the Snowden documents have we seen about them actually saving the audio of all the telephone conversations?
We have, I mean, he actually said at one point, again, pretty early on, he's like, they don't need to necessarily grab the content, they grab the metadata, figure out what they're going to go grab later.
So, okay, so from now on, grab the audio, not go back and look at.
Right.
But, but more of what we do is internet content, right?
Right.
And we learned yesterday that they're collecting how many billions of text messages a day.
I mean, a lot of our, quote, unquote, phone conversations these days, especially overseas take place via text, and that's easier to capture, and they're capturing it.
All right, well, so the Republicans and the Democrats and whoever say that, yeah, but you know, Obama, he's got to read that morning brief about all the dangerous threats.
And Marcy, she just doesn't understand about all the dangerous threats he's got to protect us from.
So maybe like Robert Gates would say, you're looking at this thing as deeply as you are through a soda straw out of context, and you don't realize you're putting us all at risk, Marcy.
One of the interesting things about Obama's speech is he admitted in there that we, that the NSA basically engages in law enforcement for other countries.
And that it makes sense at a level because we know that the NSA has been involved in the drug war.
Okay, so that's not surprising.
We know that the administration has applied its terrorism approach to what it calls transnational crime organizations, including things like Yakuza, but also kind of more traditional mobs and real estate busts and so on.
So Obama admitted that they're using this to pursue crime, to pursue law enforcement.
But guess what?
They're not going to use it to pursue the transnational criminal organization called JPMorgan Shade, which has done far more damage to this country than the FEDFEST or the Yakuza or even many hacking groups that mob connected hackers.
And he even said, we need to keep the hackers out of the stock market.
We need to keep the hackers out of our bank account.
I'm like, I'm a lot more worried about JPMorgan getting into any of those things than Russian mob hackers, because JPMorgan has proven far more lethal than those hackers have.
And until he starts, you know, that's one of the things that I find problematic with the example that you gave, which is, well, it's not, you know, you don't understand because you haven't seen the PDB.
I've seen the damage that JPMorgan Shade has done around the country, and yet we're not pursuing them as a transnational crime organization as we would the Yakuza.
So we do that.
And, you know, this is all just kind of smoke and mirrors.
It's, you know, it's not we're not we're not going after the things that are the biggest risk to this country.
All right.
We're talking with Marcy Wheeler, Empty Wheel, EmptyWheel.net and Empty Wheel on Twitter as well about the president's big speech.
So, you know, I kept spacing out during that thing, but I was pretty sure he said nothing for 45 minutes.
And I'm glad that you were able to pay attention and tell us what all he didn't say and what all he is leaving in place.
But we'll be back with more on the NSA and the Snowden revelations with Marcy Wheeler right after this on The Scott Horde Show.
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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
I'm talking with Marcy Wheeler, EmptyWheel.net is her great blog.
She's got a couple co-authors there.
Really great stuff, man.
I'm telling you.
You got to bookmark EmptyWheel.net, especially if you want to get to the bottom of all this NSA stuff.
All right, and now, so, well, geez, I want to give you more or less the open floor to say what you want because you understand this stuff so well and I know you have your ideas about what kind of things might get people interested or, you know, even better understand just how far this thing has gone and, you know, maybe we can even talk about what could be done about it.
Yeah, I just think, you know, I predicted weeks ago that Obama was going to use his review process to nod towards reform, but fundamentally to ensure that reform stays in the hands of the executive branch and that played out.
I mean, I nailed it and the reason that's concerning is, in addition to his speech today, he released a presidential policy directive where he promised not to spy on people for political reasons and said he'd be nice to Europeans and yada, yada, yada, and at the very end of that he said, you know, none of this limits my power, I'm not going to get the wording right, but none of this limits my powers as commander-in-chief and yada, yada, and if people want changes, they can come to me under this process and I'll consider the changes and it's very similar to something George Bush did.
I mean, to be able to spy on Americans who were not agents of a foreign power, John Yoo wrote a memo that basically said Executive Order 12333, which is what governs all foreign spying.
Obama, sorry, Bush doesn't have to change the language of that, even if he doesn't abide by it.
If he doesn't abide by the Executive Order, the written text of the Executive Order we can all look at, it just means he has modified it, doesn't have to change it and Obama basically said today at the end of his Presidential Policy Directive, I can change this anytime I want.
So, I don't even know why we would consider it any more valuable than toilet paper because it's just a PR process, you know, there's no reason we or the Europeans should believe anything he has in there because he has signaled, I can change my mind at any time and I reserve the right as Commander-in-Chief to keep changing my mind and doing whatever I want and really, his ideal outcome and Dianne Feinstein and Mike Rogers and James Clapper and all the people who are doing a victory lap right now, their ideal outcome is for us to believe things have changed and for them not to have changed.
And I think, you know, I'm actually surprised by how little of a nod he made towards reform today.
Yeah, he's always much more concerned about right-wing critics than left ones and also, well, he's kind of a conservative in the first place, but, so this is, in other words, you're telling me it's kind of like he did with the, with torture, saying I ban torture, so instead of saying I'm ordering the government to recognize the fact that the laws of America ban torture all along here and that they will obey those laws, instead he was saying it's as illegal as I say it is and in essence I reserve the right to change back again and of course he's had the military handling people under Appendix M all this time as we talked about on the show last week with Jeff K, right?
So it's that same sort of thing where, never mind that the Fourth Amendment bans all this, he can just say, oh, well, I'm making this little change as long as I feel like it.
It's really, well, it's, that's part of having an empire is having an emperor, I guess.
Well, and I love your example because for two reasons in his speech.
One is in the middle of his speech he said, well, and Bush, you know, we got a little out of control after 9-11 under Bush including the use of enhanced interrogation techniques and I was like, what?
You know, because if you call it enhanced interrogation techniques, it's a giant white flag to the deep state saying I'm not going to do anything to rein in what you do.
I'm going to, I'm going to call it by all the pretty euphemisms and let you continue doing what you do.
And then he went on to say, one of the things he tried to do in his speech was pretend that he was about to make changes before that mean Edward Snowden came along and started leaking profusely.
And he said, you know, I had done this review and I had given this speech at the National Defense University and I had said we were going to rein in the drone program and I had said we were going to move away from the AUMF and move away from the war footage.
And then that mean Edward Snowden started leaking profusely and that's, I don't know the words he used, but that's effectively what he said.
But the hysterical thing about that is, you know, he raised the drone program that he rolled out purported changes to.
And since then we continue to kill wedding parties.
We continue to kill children.
We continue to do it all under CIA and we now know that they plan to continue doing it under CIA.
So he pointed to something, I mean twice in his speech, he pointed to things where he had backed off bringing the deep state, bringing the national security establishment under some kind of control that the torture and calling it enhanced interrogation techniques and drones where nothing has changed in spite of his big PR push saying that it had changed.
So there is zero reason why we should believe that spying is any different because he signaled that he's not going to rein in the national security state.
By the way, I hope you didn't want good news for me because I'm pretty, yeah, no, I didn't expect good news.
I just, just the truth, you know, which is what we're after here.
Now this third party doctrine, uh, am I right that that's just blatantly wrong?
This court case, this Supreme court case that says, well, if the phone company knows who you called, then clearly that's the same as surrendering that information to all of mankind, especially including the state.
Right, huh?
Right.
Come up with that.
Right.
And he actually, in his speech also said, oh, and these private companies are gathering more and more and more information and golly, they're really bad.
And I was like, if you believe that and at the same time, don't call for the end of the third party doctrine today, then you're completely disingenuous.
The logic being that, you know, and NSA apologists do this all the time.
They're like, oh my gosh, look at all that information.
Your credit card company or Google collects on you.
But the thing is NSA or FBI can get every single bit of it and they do.
And so for them to say that it's bad to collect that information when they're collecting that same kind of information, when they're not preventing themselves from getting that information is, you know, just the height of cynicism because you know, they're basically condemning their own actions, but allowing themselves to continue it.
It's a shiny object.
Yeah.
And, you know, I mean, just think about it in the long term.
If you took away all the parties and all the personalities and you're just talking about, you know, this is going on in country X here.
How long are we to expect that country to last, knowing that all this information is waiting around, that the NSA has access to while children are being kidnapped, while people are being raped or held hostage or extorted by some terrible private villain out there?
Or maybe they are a defendant in a criminal case and they want to prove their alibi and whatever.
And how long is it going to be?
Could it possibly be that you're going to have all this information that we swear we're collecting all this, but we're only querying it every once in a while?
And maybe now they'll have to have extra permission than before or whatever.
But how long before that just cracks open into a total flood and all government authorities across the land have access to the whole hall, you know?
Right, right, right.
And and I mean, it's just.
It's frustrating.
Think about what that would be like, you know, to have every every deputy sheriff have access to your full file updated instantaneously at all times, your whole your kindergarten grades and everything since, you know, your permanent record.
Your DNA.
Yeah.
So one other thing people should know that Obama didn't mention, which again is pretty terrible news, he didn't mention NSA's weakening of encryption, didn't even mention it.
So we should assume that the NSA is going to continue to hoard zero days, which makes us all less secure.
So that's more bad news.
Sorry, people.
Well, you know, and I saw on your on your Twitter feed and on your blog, you talked about how he was kind of using weasel words to he ignored the NSA's role in cyber warfare and he kind of skipped it.
And then later he sort of added it in and snuck it in under the rubric of protecting us from the terrorists or something like that.
And you're pointing out some hypocrisy there that I didn't quite catch on to.
Yeah, I mean, he basically said, oh, 9-11 happened.
So we had to go after terrorists like this.
And oh, by the way, the biggest threats are cyber, cyber, cyber criminal.
And it was it was a really interesting move because, A, he wanted just the only fine that we do was collection of intelligence on our enemies at a time of war.
And cyber is not that.
Cyber is collection on at best, you know, at biggest threat, the Chinese in time of peace, but it also is collection on American hackers domestically by a foreign intelligence agency, which shouldn't be going on.
But that sort of, you know, I think we're getting closer and closer to where they'll actually admit that.
But but but it's also, you know, it's just really useful to watch what.
Everybody from the administration does in their discussion of cyber, because it increasingly is the prime focus of this, and it increasingly means that this, quote unquote, foreign intelligence collection is actually domestic intelligence collection conducted for a variety of reasons, and they try not to admit that because that would make it another big problem.
But that that's really what's going on.
Right.
Yeah.
In other words, it's just the same old scam.
Start off every sentence with Osama bin Laden and end it with some more rights.
You got to give up, right?
Exactly.
Some more policies that have got to be implemented.
Oh, man.
All right.
Now, OK, here's a crazy conspiracy theory and you have hardly any time to tell me what you think about it all.
But it seems to me like it's The New York Times and The Post and those guys who are breaking the Snowden stories about what our government has on other governments.
And I was wondering if you think maybe that's sort of a limited hangout meant to, you know, spin the whole thing that I thought I liked this Snowden guy, but he's narcing on stuff that he shouldn't be telling where Greenwald is really seems to be sticking more to the domestic abuse stuff.
Am I going off half-cocked there, you think?
I don't know.
I do know that Greenwald for a while was trying to, I think, demonstrate the degree to which, you know, the U.S. is this big dragnet and really the U.S. empire is this big dragnet, which is slightly different from what Scott, sorry, what what's his name, Sanger at The New York Times just revealed.
But one of the things that got missed in that recent Sanger story that talked about the Jump the Gap hack that the NSA can do, Sanger said that he had that story from his Iran report.
We use that for Stuxnet.
He knew about it and he withheld the story.
And so for a lot of people to respond to it, to say, oh, my God, Edward Snowden is making us less safe.
The Iranians already knew about it.
If the Iranians knew about it, tell me the Chinese and the Russians don't know about it.
They do.
And so all it is is is yet another case where things don't get reported in the United States that our adversaries already know.
And the people that are, you know, that the people, the secrets are being kept from are not our adversaries, but actually you and me.
Because if we found out, then, you know, we'll be angry.
Yeah, exactly.
Although I wonder why they even care about that anymore.
But that's another show.
Thanks very much for your time, Marcy.
I sure appreciate it.
Take care and have a good weekend.
You too.
All right, everybody.
And that's the show Overtime.
We're all done.
See you Sunday morning on KPFK or back here Monday, 3 to 5 on Eastern Time on Liberty Express.
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