02/05/14 – Patrick Toomey – The Scott Horton Show

Don't worry about things you can't control.
Isn't that what they always say?
But it's about impossible to avoid worrying about what's going on these days.
The government has used the war on guns, the war on drugs, and the war on terrorism to tear our Bill of Rights to shreds.
But you can fight back.
The Tenth Amendment Center has proven it, racking up major victories.
For example, when the U.S. government claimed authority in the NDAA to have the military kidnap and detain Americans without trial, the nullifiers got a law passed in California, declaring the state's refusal to ever participate in any such thing.
Their latest project is offnow.org, nullifying the National Security Agency.
They've already gotten model legislation introduced in California, Arizona, Oklahoma, Missouri, and Kansas, meant to limit the power of the NSA to spy on Americans in those states.
We'd be fools to wait around for the U.S. Congress or courts to roll back, big brother.
Our best chance is nullification and interposition on the state level.
Go to offnow.org, print out that model legislation, and get to work nullifying the NSA.
The hero Edward Snowden has risked everything to give us this chance.
Let's take it. offnow.org.
All right, you guys.
Welcome back to the show here.
I'm Scott Horton.
This is my show, The Scott Horton Show.
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And, of course, we're live here from 3 to 5 Eastern Time at Liberty Express Radio.
And our guest on the show today is Patrick Toomey.
He is a staff attorney at the ACLU's National Security Project.
Welcome to the show.
How are you doing?
I'm good.
Thanks, Scott.
Thanks for having me on.
Very happy to have you here, and very happy to see your journalism here, because I don't think I ever heard of this anywhere else.
You're pointing out, you're talking about the Privacy and Civil Liberties Oversight Board, which did a pretty good report, better than I think a lot of skeptics assumed they would, being handpicked by the president and his staff, right?
But they said some pretty critical stuff about the NSA, and they brought up this thing that you had written about last summer, which I guess had come out in the Snowden documents and or you guys' lawsuits, and that was the NSA's shadow database, as you call it, the corporate store.
So, first of all, straighten out anything I got wrong just now, and then tell us all about the corporate store, please.
Sure.
That's exactly right.
The president's Privacy Board issued a report a few weeks ago that was very critical of the NSA's bulk collection of Americans' phone records.
It's tracking of our phone calls every day, every phone call.
And among the different recommendations that the Privacy Board put forward was both an end to the program in the first instance, the government should get out of the business of collecting our phone records, and it shouldn't even put that task onto the phone companies.
There shouldn't be any surveillance by proxy that's happening that way.
But another issue that it flagged is this shadow database or this corporate store that you mentioned, and that is a database where the government saves the queries when it conducts, when it sifts through the phone records and it takes data out of that kind of raw database.
Officials like to talk about the types of restrictions that they face on the front end when they first go in there.
But what we learned from some of the Snowden documents and some of the documents that have been released since then is that the government really has wide open access to the back end of these documents, the query results, which can number in the millions, as the Privacy Board informed us.
So in other words, I think you say it's called the collection store, first of all.
That's where they got all the stuff.
But whatever loophole they got across to get in there and query something, if they say they want to know one thing, they can get all kinds of information from three hops away and everything else.
Basically, getting in there at all is basically a blank check for anything you want in there at all.
And then once you're in there, then anything that you look at in there, that goes to this corporate store where now anybody can look at it forever without any probable cause or reasonable belief or suspicion or anything else at all.
Do I understand that right?
Yeah, that's exactly right, Scott.
This three hops point is actually really important to the way this whole process works because the government likes to say, well, we can only dip into the collection store, the raw data, when we have a person we want to target.
And they've told us that in 2012 they only targeted 300 people.
But you have to understand what it means to target someone.
It's not just a matter of looking at that person's phone records.
They actually do what's called a three-hop query.
President Obama has since limited it to two hops, but whichever you're talking about, that means that they look not only at all the phone calls and contacts of their initial target, but they then look at all of those contacts' contacts, and then they go out another step.
So what you end up pulling in is not just the phone records of one person, but the phone records of millions of people because it's an exponential equation to figure out how many people you're reaching with that type of query.
And so once you've identified those thousands or millions of phone records using your three-hop query, you then get to save all of those records in the corporate store.
So a good example for people who are trying to figure this out is, if the NSA is targeting someone who's believed to be connected with a terrorist organization and that person happens to call a takeout place for dinner one night, and then you, an innocent American, call the same takeout place, then you're linked in that chain because through the chain from the original target to the restaurant to you, your number could be in that pool, and all that information gets put into the corporate store where it can be searched without probable cause or reasonable suspicion in exactly the way that you're describing.
Right.
Well, and the thing is, too, is even within one hop, that's not fair.
It's not fair even to persecute the restaurant, never mind anybody else that calls up the restaurant.
I think about, well, so I'm a political person.
I draw attention to myself denouncing things like this all day, right?
But I got people whose numbers are saved to my cell phone who are just my friends and family, who are what I call a civilian, right, who have no interest in this kind of thing whatsoever anyway.
But now if they're a friend of mine, they're incriminated by association because here I am.
I got ACLU guys in my cell phone.
I got former CIA guys in my cell phone.
And so now people who have never even left our old neighborhood, they're somehow, as far as the computer's concerned, they're part of the conspiracy case they're building on me, right?
I mean, it's true that they pull in a huge amount of information about innocent, ordinary Americans whenever they do one of these searches.
And, of course, they're capturing all this information in the first place, too, because we know they're collecting it in bulk.
But what compounds the problem, given all the restrictions that intelligence officials tell us apply to their use of this information, is that even when they do one of these so-called limited searches, these three-hop queries, they end up getting so much information that then becomes available for whatever purpose, whatever unlimited type of purpose they want to use it for later.
And this metadata, this information about who we call and who we talk to, can be very sensitive, especially when the government collects it over long periods of time.
It can expose your relationships with people like your family and like your business associates, your religious affiliation, your political affiliation.
So we believe that it is really at the core of Americans' privacy interests and something that the government shouldn't be in the business of collecting.
Yeah.
Well, and I think, am I right that nobody's really talking about this, that once they get their mitts on it once, that now any of them can get their mitts on it for any time, at any time, with no excuse necessary anymore?
People aren't talking about this.
I mean, this is the first I've understood of this.
I can only read so much Marcy Wheeler before my head explodes.
I just can't understand this stuff.
Yeah.
Well, she's certainly been talking about it, but it's true.
People haven't been talking about this element of the program as much as they should be.
And I think the Privacy Board's focus on it was a great start, but we need to see Congress members focusing on it more.
We know that people like Senators Wyden and Udall have talked about a similar kind of backdoor access to a different program, and hopefully they would be interested in the same type of issue for the phone records program.
But this is something that is a big deal, especially if the program gets moved over to either the phone companies in the way that some people are talking about, or to a private consortium, because the government, even if the collection is moved to the original collection of the raw data, even if that's moved out of the NSA's hands, it will still be getting query results.
And so that information will stay inside the NSA, and we should be concerned about what the NSA can do with it and what rules apply to its use of that information.
So now, are we talking about just the phone records program here?
We're talking about anything they get from PRISM or anything they get from breaking into Google's overseas servers?
Because that's the gigantic end run around any limit there, right?
It's breaking into the cloud servers of these gigantic companies.
So all that goes to this collection store, or this is just as far as what Verizon and AT&T are turning over to them every day?
The database called the corporate store is specific to the phone records program, from what we know.
But there are similar databases containing information from PRISM and from the government's so-called upstream program, which collects information directly off the Internet backbone.
And there's obviously collection programs overseas, like you're describing, when it intercepts data traveling between the Google and Microsoft data centers.
But the same principle applies, even though you may think of these as different databases.
The types of concerns raised by Centers Widen and Center Udall is a similar one.
It's that the government is collecting information for one purpose, under one set of restrictions.
But once that information is in the NSA's hands, there are very few limitations on the ways that they can go back into that information and search on law-abiding Americans without any type of warrant or probable cause.
And so some members of Congress have proposed that they close that back door, that the NSA is required to get some type of court order before it can search through that information.
Well, and then, reasonable suspicion.
I don't remember reading that in the Fourth Amendment.
All of this, including going back all the way to FISA 78, is all unconstitutional, isn't it?
I mean, debate.
We need to have a debate, and we need to have legislation.
You can't amend the Constitution or repeal the Fourth Amendment with a debate and some legislation, can you?
You certainly can't repeal the Fourth Amendment just by passing a law.
And we think that a number of these surveillance programs intrude on our Fourth Amendment rights, and we've actually just filed a new motion in Colorado on behalf of a defendant who was subjected to surveillance under the FISA Amendments Act, which is the program through which the government examines American international communication.
Can I keep you one more segment here?
You've got to go, Patrick.
Sorry?
Can I keep you one more segment, or do you need to run?
I can stay on for a minute or two.
Okay, great.
Hang tight through this break.
We'll be right back, everybody, with Patrick Toomey from the ACLU, staff attorney at their National Security Project.
Hey, y'all.
Scott here.
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Come on out and say hi.
All right, you guys, welcome back to the show.
I'm Scott Horton.
This is the show, The Scott Horton Show.
I'm talking with Patrick Toomey from the ACLU.
He's a lawyer at their National Security Project.
We're talking about the NSA's shadow database, the corporate store.
And when we were interrupted by the heartbreak there, we were talking about y'all's latest lawsuits, which was next question on my list, just pertained to the Fourth Amendment.
You're saying that, I believe you said, the government admitted to having illegally spied.
Well, I won't characterize.
I'll let you characterize again.
But they gave somebody standing to sue them, and you guys are taking it and running with it, correct?
That's exactly right.
The government in October, for the first time, told a criminal defendant that it intended to use evidence derived from the FISA Amendments Act against him in court.
And the FISA Amendments Act is a law passed in 2008 that allows the government to engage in dragnet surveillance of Americans' international phone calls and e-mails.
So I'm sorry, so it wouldn't be illegal surveillance.
It would be, I mean, technically illegal.
It would be their unconstitutional surveillance, which is going to give y'all a chance to challenge the law under the Constitution.
Exactly.
We believe it's unconstitutional, and we're now raising that challenge in this defendant's case in Colorado, and it will be decided by the courts ultimately.
But we think that this surveillance really goes far beyond what's allowed by the Fourth Amendment, and that Americans have a privacy interest in the content of their e-mails and in their phone calls, even when they call overseas or e-mail their friends abroad, and that the government should not be able to look at those e-mails, spy on those phone calls, without an individualized targeted warrant or something equivalent.
So in other words, an exclusionary rule that none of this can ever be used anymore, because that's already been a big scandal, right, about how they've been laundering evidence through the DEA and other police agencies.
Hey, guys, here's what Mr. Jones is up to or whatever.
Go and get him.
But don't tell him you heard it from us.
Make up a reason.
Make up some probable cause to begin your case that doesn't include we told you.
Yeah, that has been a significant concern highlighted by Reuters especially and others since the Snowden disclosures began, that the government has engaged in certain cases in a practice called parallel construction, which conceals the origins of a government investigation and makes it look like the case started with one thing, when in fact it really started with a secret surveillance program that the defendant never has a chance to challenge in court.
We think that violates due process.
You guys better not ever lose a case like that, because if they ever get permission, the NSA, to turn over their catch to all the police agencies to do what they want with, to begin their investigations, their criminal investigations with, we're going to have to build a prison for all 300 million of us, I think.
We certainly think that they should be using much more targeted techniques to engage in surveillance.
Yeah, well, I mean, and that one's pretty much a safe bet, right, that the judge is going to agree with you about that, about the NSA laundering their parallel construction, laundering this criminal evidence to begin investigations.
There's no way they can get away with that, right?
Not without throwing out the whole Constitution right out the window.
Well, we would hope so.
That issue is not the main one in our case, now that they've provided notice to the defendant, now that they've acknowledged where some of the information came from.
But we expect that other defense attorneys will be raising it in cases throughout the country and trying to explore the ways in which NSA surveillance has made its way into very routine criminal investigations in ways that aren't proper.
Yeah, that's really important there.
All right.
And then, so what can people do to help?
Obviously, there's the courts.
What can they do to help you guys in your fights in the courts?
And what other avenues?
Well, an ACLU doesn't just work within the court system, right?
You guys lobby Congress.
What can people do to help play a part in a way that you think would be the most effective use of their time and effort to really roll this thing back?
I mean, the pressure to do so, the heat on this issue cannot last forever.
We've got to really strike while it's hot.
That's right.
I mean, this is a critical time for changing the course of our country on these surveillance issues.
People should be speaking to their representatives and their senators in Congress, being really vocal about their views on privacy and the measures that Congress should take to protect privacy and rein in these surveillance programs.
They should also be just like listening into this program, educating themselves about all the different ways that the government is engaging in surveillance and the ways in which that violates the privacy of ordinary people when the government engages in spying on such a massive scale.
Right.
OK, great.
Hey, thanks so much for your time, Patrick.
I really appreciate it.
Thanks, Scott.
All right, everybody.
That is Patrick C. Toomey.
He's staff attorney at the ACLU's National Security Project.
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